Gasperson v. Rice, 240 N.C. 660 (1954)

Sept. 29, 1954 · Supreme Court of North Carolina

240 N.C. 660

W. W. GASPERSON v. CLAUDE RICE, SR., CLAUDE RICE, JR., and YOUNGBLOOD TRUCK LINES, INC.

(Filed 29 September, 1954.)

1. Trial § 55: Appeal ancl Error § 40d—

Where a jury trial is waived, the findings of fact of the trial court have the force and effect of a verdict by jury and are conclusive on appeal if there be competent evidence to support such findings.

2. Automobiles §§ 14, 18h (3) — Plaintiff held guilty of contributory negligence in turning left without seeing that movement could be made in safety.

In this trial by the court under agreement of the parties, plaintiff’s testimony to the effect that he looked in his rear-view mirror upon giving a left-turn signal some 350 feet before making the left turn, but did not look in the mirror again and did not see the tractor-trailer, which was following, at any time before collision, together with defendant’s evidence that as the tractor-trailer came alongside plaintiff’s vehicle in an attempt to pass, plaintiff cut left into the side of defendant’s vehicle, with the point of impact being behind the tractor and at the front of the trailer, is held sufficient to support the trial court’s conclusion that plaintiff was guilty of contributory negligence proximately causing his injury, and nonsuit was proper. G.S. 20-154.

Appeal by plaintiff from Whitmire, Special Judge, at July “A” Term, 1954, of BuNCOmbe.

Civil action to recover for personal injuries and property damage resulting from a collision of two motor vehicles, beard below on appeal from the General County Court.

The collision occurred on the Sweeten Creek Eoad a few miles south of Asheville. Both vehicles were proceeding northwardly. The plaintiff, driving a pick-up truck, was in front. The defendant Claude Bice, Jr., driving the tractor-trailer of the defendant Claude Bice, Sr., was in the act of overtaking and passing the pick-up truck, which was turning left from the highway into a side road.

Issues of negligence, contributory negligence, and damages were raised by the pleadings. Jury trial was waived (G.S. 7-287). The judge of the County Court, on the basis of findings and conclusions that both drivers were negligent and that the negligence of each contributed as a proximate cause of the collision, entered judgment denying recovery and dismissing the action.

To the findings and conclusions adverse to the plaintiff, he excepted and appealed to the Superior Court. There all his exceptions and assignments of error were overruled and the judgment of the County Court was affirmed.

From the judgment of the Superior Court the plaintiff appeals to this Court.

S. J. Pegrarn and William J. Qocke fox plaintiff, appellant.

Adams Adams for defendants, appellees.

JOHNSON, J.

Where jury trial is waived, the findings of fact of the trial court have the force and effect of a verdict by jury and are conclusive on appeal if there be competent evidence to support such findings. Woody v. Barnett, 239 N.C. 420, 79 S.E. 2d 789.

Tbe plaintiff’s assignments of error challenge tbe sufficiency of tbe evidence to support tbe findings and conclusion tbat tbe plaintiff was contributorily negligent.

Tbe General County Court found and concluded in substance tbat tbe plaintiff was negligent in tbat before making tbe left turn into tbe side road be did not exercise reasonable care to ascertain tbat sucb movement could be made in safety, as required by G.S. 20-154, and tbat sucb negligence was a proximate cause of tbe plaintiff’s injury and damage. Tbe crucial portion of tbe determinative finding of tbe court below is tbat “tbe plaintiff did not look to bis rear and to bis left and thus failed to observe, as be should have observed, tbe oncoming tractor-trailer . . .”

Tbe record discloses plenary evidence in support of tbe crucial findings which defeat plaintiff’s right to recover. It suffices to note tbat tbe plaintiff on cross-examination stated tbat be looked in bis mirror when be gave tbe left-turn signal 350 feet before turning but tbat be did not look in tbe mirror again. He further admitted be never saw tbe tractor-trailer at any time before tbe collision. As to this, tbe defendants’ evidence discloses tbat as tbe tractor-trailer came alongside tbe plaintiff’s pick-up, tbe plaintiff cut left into tbe side of tbe passing vehicle, with tbe point of impact being behind tbe tractor and at tbe front of tbe trailer.

Prejudicial error has not been made to appear. Tbe judgment below will be sustained under authority of Grimm v. Watson, 233 N.C. 65, 62 S.E. 2d 538, and Ervin v. Mills Co., 233 N.C. 415, 64 S.E. 2d 431.

Affirmed.