Keller v. Security Mills of Greensboro, Inc., 260 N.C. 571 (1963)

Nov. 27, 1963 · Supreme Court of North Carolina
260 N.C. 571


(Filed 27 November 1963.)

1. Automobiles § 25—

The fact ¡that the speed of a vehicle is lower than .that fixed by statute does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, or when hazard exists with respect to weather or highway conditions, and speed shall be reduced as may be necessary to avoid colliding with any vehicle on the highway. G;S. 20-141(c).

2. Automobiles § 41a—

Testimony and the physical facts at the scene of an accident -which are sufficient for ithe jury to infer that defendant was traveling at excessive speed under the circumstances in driving on a wet street entering an intersection, that he attempted to turn right and was unable to control his vehicle so that it struck the side of a vehicle stopped on the intersecting street in obedience to the trafile control signal, held, sufficient to be submitted to the jury 'on the issue of defendant’s negligence.

3. Appeal and Error § 34—

Objection ¡that .appellant, instead of reducing the testimony to narrative form, merely gave conclusions as to the meaning of the testimony, should ordinarily be presented by countercase or exceptions to the case on appeal, and the appeal will not be dismissed under Rule 19(4) unless the narration of .the evidence ¡is fatally defective.

Appeal by plaintiff 'from Armstrong, J., April 1, 1963, Session of Guilfoed (Gireemsiboro' División).

Clarence C. Boyan for 'plaintiff.

Sapp & Sapp for defendants.

MooRE, J.

The administratrix of Rev. Edward C. Keller, deceased, brings 'this action itio recover for his wrongful death. He was injured 23 August 1960, about 6:00 P.M., when the truck of the corporate defendant .collided' .with the automobile he was 'driving. From these injuries he died at 8:30 the same evening.

At the close of plaintiff's evidence the court sustained defendants’ motion for nonsuit. Plaintiff contends that .the evidence makes out a prima facie ¡ease of actionable negligence.

The collision occurred at the intersection oif Bast Cumberland and Sampson Streets in the Oity ¡of Dunn. Cumberland Street runs generally eiast and west; Sampson Street runs north and south. The intersection is in a residential ¡district, and 'the 'speed limit in this vicinity is *57235 mites -par hour. Traffic at the intersection “was controlled by two electric ¡traffic devices commonly known ¡as stop lights, duly installed ¡and operated urndeir ithe 'authoirity of the ¡State Highway Commission.” The streets' are pawed. On the day in question it had been raining and .the streets were wet. It wlas drizzling ¡at the time oif the ¡accident. The corporate defendant’s truck was ¡being operated by individual defendant, in the course and! about ¡the business of Ih-ils employment by corporate defendant.

Witnesses, including ¡a police officer, who went to' the scene immediately after the accident testified to the following facts. The vehicles were at or near .the southwest corner of the intersection. Keller’s car was near the south edge of Cumberland Street facing southeast; the front of (his car was about even with /the west edge oif the intersection. Keller was lying in the street, his head against the ¡curto. The front of the truck was rammed into the left ¡side of the car. The vehicles were .about ¡p¡erpendicular to each other; the truck faced southwest. When the .truck was -moved the door of the ¡oar came off on -tire bumper of the truck. The oar was ¡praictieally demolished. (It was stipulated that the car was worth $435 before the .accident, $85 immediately after.) The only 'dirt ¡and debris, consisting of the rear-view mirror and moulding from Kelteris car, found at the scone were under .the vehicles before they were moved.

Julia Smith, who lives on Cumberland Street west of the intersection, was standing on her .porch. About 6:00 P.M. she saw Rev. Keller, who-was known to- her, 'drive by on Cumberland Street headed east in his proper lane of ¡travel. She ¡heard1 the noise of the impact but did not see the vehicles ¡at the time of the collision.

Rev. Samuel Dias tos ¡at Julia Smith’s home on ¡her porch. He saw the Keller car pass. It was the only ear on (the street. He heard the noise of the ¡impact -and went to the scene. The car involved in the wreck was the ¡one (he had seen pass the Smith home.

Lila Thaggard testified ¡as follows: I live on the west ¡side of Sampson Street ¡about ¡one-half block north of 'Cumberland Street. “I saw the collision and it ¡happened around 6 o’clock in the afternoon. I was standing in my door there on Sampson Street ¡and this truck, it came from the north ¡coming east on Broad Street (tire next street to the north of and parallel to Cumberland) and it turned off Broad Street into Sampson Street, and ¡it was coming ¡so fast that I looked behind (him to see who was after -him, and when' he ¡stopped, he was kind of ¡curved like as if he was going west and ¡he hit this car. The ¡truck curved Idee he was going west at the intersection of Cumberland Street. *573The >a,utomotele I learned later was 'driven by Rev. Keller and was on Cumberland Street headed east. I . . . went up to< the scene . . . .”

Plaintiff alleges, inter alia, that the 'driver oí the -truck failed to. keep a proper lookout, failed to keep the truck under reasonable control, failed to decrease speed in approaching .and -crossing the intersection [G.S. 20-141 (:e) ], and operated the truck at a ©peed greater than was reasonable -and prudent under the 'conditions then existing [G.S. 20-141(a)],

The fact that the speed o-f a vehicle is lower than that fixed by statute does not relieve the driver .from the duty to- decrease speed when approaching and -crossing -an intersection, or -when -hazard exists with respect to weather or highway conditions, -and speed ©hall -be reduced as may -be necessary to- avoid colliding -with any vehicle on the highway. G.S. 20-141 (c); Primm v. King, 249 N.C. 228, 106 S.E. 2d 223. The physical facts -at -the ©cene -o-f an accident may -disclose that the operator of the vehicle was traveling -at excessive speed. Carr v. Stewart, 252 N.C. 118, 113 S.E. 2d 18; Riggs v. Motor Lines, 233 N.C. 160, 63 S.E. 2d 197.

From the evidence adduced, it is permissible, but not compulsory, that -a jury conclude that Keller had -stopped before entering the intersection or was 'approaching and h-ad not reached the intersection, that it was mining -and the pavement was -wet, -that the driver o-f the tru-ck -attempted to turn west into- Cumberland Street -and h-iis speed wa© such -that -he -oo-uld no-t looutr-ol the truck, and that by reason of excessive -speed, loss of control or inattention he ran into- the Keller automobile, demolished it .and- inflicted fatal injuries upon Keller.

The -court -erred in 'Sustaining defendants’ motion f.or nonsuit.

Defendants move in this Court .to -dismiss the -appeal f-o-r non-compliance with rule 19 (4) of the Rule© -off Practice in the Supreme Court, 254 N.C. 800. The rule provides, in part, that “The evidence in case on -appeal Shall be in narrative form, and not by question and answer . . . .” The primary purpose of the rule is to save -the time o-f the Court in reviewing the evidence and to- reduce printing -costs. It is observed -that -none of the evidence in the -present case on -appeal i© in question and -answer form, except in -one instance where -defendants objected to -a question and answer. Defendants do not contend that the case -on -appeal presents .the evidence by question -and -answer; they contend /that the evidence in -the record consists of “The Conclusions o-f plaintiff -appellant -as to the meaning o-f the testimony and not constituting -a reduction- to narrative of -the testimony itself.” Most off the evidence in -the record appears -to be -a narrative of the -testimony o-f the witnesses stated in the first person, -a portion in the -third person. *574Testimony relating to pictures, offered .as exhibits, is in the third person, and indeed may be short-hand explanations. It its true that the evidence is brief, and the narration is hardly a model of compliance with Rule 19 (4). However, we do not consider the narrative sufficiently ¡defective or at variance with the rule to justify -a dismissal of the appeal. Furthermore, .appellee did not file :a oounteroase or exceptions to the case on appeal, though he ¡hiad an opportunity to. do so. The motion to dismiss is denied.

The judgment below is