Textile Motor Freight, Inc. v. DuBose ex rel. Convey, 260 N.C. 497 (1963)

Nov. 20, 1963 · Supreme Court of North Carolina

260 N.C. 497

TEXTILE MOTOR FREIGHT, INC. v. MARY MAXINE CONVEY DuBOSE, a minor, by her Guardian ad litem, W. H. CONVEY, and J. H. DuBOSE.

(Filed 20 November 1963.)

1. Automobiles § 46—

Where there is no evidence that defendant driver failed to give the signal for a left turn as required by statute and no evidence that she was traveling at excessive speed at the time, it is error for the court to instruct the jury upon the issue of the driver’s negligence in regard to turn signals and excessive speed.

2. Trial § 33—

It is error for the court to charge upon an abstract principle of law which is not presented by the allegations and evidence.

Appeal -by defendants from Martin, Special Judge, 18 February 1963 Special “A” Civil Session of MeCKlenbueg.

This is a civil -action to- recover for damages to- plaintiff’s tra-ctor-tmailer resulting from a collision between said tractor-trailer and a 1958 Volvo -automobile oiwned by defendant J. H. DuBose and driven 'by bis daughter-in-law, Mary Maxine Convey DuBose, who was seventeen years of iage -at the .time of the collision.

The defendants set up a .cross-action for personal injuries to the minor defendant and for property damages -sustained by defendant J. H. DuBose.

The collision occurred at the intersection of Independence Boulevard, Eastway Drive and Commonwealth Avenue in the City of Charlotte, -about 7:35 a.m. on 15 June 1960. Independence Boulevard runs substantially east 'and west .at this -intersection; Commonwealth Avenue runs -in a northwesterly and southeasterly direction; -and Ea-stway Drive dead ends in the Boulevard at this -intersection and runs north from the Boulevard. The traffic at -this intersection is controlled by electric signal lights exhibiting -the- -words “Go,” “Oauti-on,” or “Stop.” In approaching thi-s intersection from the east on Independence Boulevard, it is slightly downhill.

The plaintiff’s tractor-trailer and its cargo weighed 58,000 -pounds and w-as -being -driven in -a westerly direction -in -the middle of the three lanes for westbound traffic on Independence Boulevard. Plaintiff’s drivei’ .testified: “A© I wa-s -coming into the intersection, -at about 150 yards, I noticed >a traffic light change from red to green.

“I was going around 30 or 35 miles per hour, and -as I got into the intersection I isaw a small foreign car traveling east making .a left-hand turn north over -into Eastway Drive from the insi-de lane next to the island on Independence Boulevard. I was in the intersection when I first noticed her, noticed she -wasn’t ©topping. As I entered the intersection I -saw her making -a turn in front of me. * i:' * I applied my brakes and pu-lled -all the way over into- the turning lane. * * * I cut over’ to tilie right as far as I -could and collided with -her in the intersection over -near Eastsid-e (sic) Drive. The small .foreign car spun around, tlhe back -end of it hitting the telephone po-l-e located between two drives.”

The plaintiff’s evidence further tends -to- show that the plaintiff’s driver lost control of the .tractor-trailer when he struck the small c-ar driven by the minor -defendant, ran past the intersection of Eastway Drive, hit a Studeb.aker oar -on Oo-mmonwealth Avenue -and stopped between two -trees about 20 feet from the northern edge of Independence Boulevard.

The plaintiff ¡alleges .that .the minor defendant gave no signal or other warning of am intention to make a left turn, ¡but offered no evidence in ¡support of this allegation.

The minor defendant, Mary Maxine Convey DuBoee, testified that on the morning of 15 June 1960 she left home ¡about 7:15 a.m.; that she wais on her way to summer school at Garringer High School, which is located north of Independence Boulevard just off Eastway Drive. “I do not recall getting on Independence Boulevard, nor do I recall the accident or anything about it. My first memory after, the accident is of the hospital.” The minor defendant was .painfully ¡injured and left with permanent and serious ¡scars on various parts of her body.

Lewis K. Patterson, a witness for ¡defendants, testified: “At about 7:30 a.m. í:' * ';í I was on Commonwealth Avenue on my way to work. I was proceeding north amid came to the intersection ¡of Commonwealth Avenue ¡and Independence Boulevard and stopped south of Independence Boulevard, in the northbound lane of Commonwealth Avenue at the point where Commonwealth reaches the ¡south side of Independence Boulevard. I ¡stopped for -the ¡red traffic light facing me * * *.

* j saw the Volvo automobile when it had ¡pulled into- the left lane, ¡headed east ¡and starting to- make a turn, looked like it was in a position to make ¡a turn. It wasn’t out to where it was in the street, but in ¡a position to- make a left turn. * * *

“When I was pulling up to a ¡stop at the light, the Volvo- was ¡already sitting there. When ¡the traffic light changed, I proceeded to cro¡s¡s Independence Boulevard ¡but got only about to the center of the first lane in the eastbound side. I ¡saw the oncoming truck ¡and stopped so as not to be involved. When the light ¡changed, the Volvo was slightly out in the center there, the center lane. It proceeded to ¡cross the street, to go up Eastway Drive, north, ¡and actually it would have been right in line with Commonwealth Avenue, coming up; ¡actually, what she was ■doing was ¡clearing the ¡street. The Volvo was ¡clearing the intersection.

“I saw the collision occur. * * *

“I would estimate the truck was running at least 40 miles ¡an hour. When the truck hit the Volvo, it spun .it completely around. The ¡right tractor wheel, right side of the truck, caught the Volvo in the right side ¡and ep-un it -around, the truck rolling on ¡and knocking the Volvo against ¡the utility pole shown on the ¡blackboard. * i:‘ *

“At the time the tractor-trailer truck entered the .intersection the traffic light for westbound traffic on Independence Boulevard was red. The accident ¡happened around 7:30 a.m.; the weather was fair; the street was dry. * * ® In my opinion the tractor-trailer truck never 'did slow down. That’® tlhe reason I proceeded to- stop, because I knew ■he couldn’t stop. * *

The jury rendered a verdict in favor of the plaintiff. Judgment was entered on the verdict 'arad the defendants -appeal, asságmimg error.

Webb & Lee; Charles Sedberry; Sanders & Walker for 'plaintiff appellee.

Carpenter, Webb & Golding; Pierce, Wardlow, Knox & Caudle for defendant appellants.

DeNNY, C.J.

The defendants assign as error certain portions of tlhe following instructions -to the jury: (1) “Now, members of the jury, there is another statute which 'states in part as follows: ‘The driver of any vehicle upon a highway, before starting, stopping or turning from ■a direct line, shall first see that such movement can be made 'in safety, (I) and if, whenever the operator of any other vehicle may be affected by -such movement, shall give a signal as required in this section, plainly visible to- the 'driver of such other vehicle of his intention to make such a move, -and the signal .shall be 'by means off the hand and arm and manner herein specified or by any mechanical or electrical signal device approved by the Department of Motor Vehicles,’ and the signal for left turn, members of the jury, is with the left hand, tine hand and arm extended- in ia horizontal direction with the forefinger pointed and the electrical turn signal referred to is such electrical turn signal which when operated inside by a lever or switch, inside -the motor vehicle, shall start ia blinking light -outside tire motor vehicle, indicating the direction to which -the -operator intends turning his- motor vehicle. (J); iarad (2) “* * " (I)f the plaintiff has satisfied you from the evidence and -by its greater weight, -that each and -all of the following three essential elements existed with respect to- plaintiff’s damage; first, that the plaintiff’s tractor was damaged -in -a collision at the intensee-ti-om of Independence B-oulevaxd and Commonwealth 'and Eastway Drive, ¡and, second, that at and prior to the collision between the tractor-trailer of the plaintiff and the Volvo- being opierafed -by the defendants, that at -and prior to- the collision that the defendants were negligent in the operation of the Volvo in that they (S) operated it at a high -and dangerous rate of speed under’ the ciroumisfanioes them and there existing, (T) or operated it without keeping a proper lookout or operated it without keeping it under proper control, or attempted to make a left turn -without seeing first that the turn could be made in safety (U) and without giving the proper and lawful signal for that left turn; (V) and, third, that such negligence on the part of the defend-amts in- the operation oí said Volvo automobile was one of the proximate causes of the ¡collision and of the damages to the plaintiff’s tractor, then it would be your duty to answer the first issue YES.”

The defendants except -to and assign a.s error those portions of the charge between.' the letters (I) and (J), (S) and (T), and (U) and (V). The only evidence with respect to ¡the speed o,f 'the Volvo car operated by the minor defendant was that of the plaintiff’s driver who testified, “When I first saw the ¡small foreign oar in the northern lane of Independence Boulevard for ©astbound traffic it was going about 10 or 15 mileis ¡an ¡hour. After I first saw it, it headed on in towards Bastway Drive ¡and speeded up as it went across the intersection.”

No evidence was adduced in the trial below to .support the plaintiff’s allegation to the effect that the minor defendant failed to give a proper ■hand signal or other warning of an intention to make a left turn.

The headnote in the ease of Farrow v. White, 212 N.C. 376, 193 S.E. 386, reads: “Where there is. no allegation or evidence that the defendant driver failed to give ¡a warning signal required of him by the statute under the circumstances, it is error for the ¡court to charge the law requiring the .giving ioif ¡such signal, since .the court is required to charge the law arising upon the evidence, C.S., 564” (now G.S. 1-180). (Emphasis added.)

I a Andrews v. Sprott, 249 N.C. 729, 107 S.E. 2d 560, this Court said: “* * * .(>.0^ committed error in ¡charging with respect to the defendant's ¡operation oí ¡his ¡oar at a reckless rate of speed. * * * The complaint ¡does not ¡allege and the ¡eviden.ce ¡does not show speed. It is error to charge ¡on ¡am ¡abstract principle ¡of law not supported by any view .of the evidence. Worley v. Motor Co., 246 N.C. 677, 100 S.E. 2d 70; S. v. McCoy, 236 N.C. 121, 71 S.E. 2d 921; Williams v. Harris, 137 N.C. 460, 49 S.E. 954.” See also Carswell v. Lackey, 253 N.C. 387, 117 S.E. 2d 51.

The defendants have not argued in their brief their ¡assignment of error to the failure of the ¡court ¡below to .sustain their motion for judgment ¡as of nonsuit interposed at the close ¡of all the evidence. Consequently, ¡this assignment of error will be taken as abandoned. Rule 28 of the Rules of Practice in the Supreme Court, 254 N.C. 783, at page 810.

We deem .it unnecessary to consider and pass upon the other assignments of error, some of which seem not to be without merit.

In our opinion, the defendants are entitled to a new trial, ¡and it is so ¡ordered.

New trial.