Garner ex rel. Garner v. Whitley, 266 N.C. 360 (1966)

Jan. 14, 1966 · Supreme Court of North Carolina

266 N.C. 360

KAY GARNER, by Next Friend, WILLIAM GARNER, C.I.D. 4492 v. RODETH PRESSON WHITLEY, Original Defendant, and GEORGE W. BOONE, Additional Defendant. and WELDON D. PATTERSON, by Next Friend, RINZO W. PATTERSON, C.I.D. 4493 v. RODETH PRESSON WHITLEY. and WILLIAM GARNER, C.I.D. 4496 v. RODETH PRESSON WHITLEY. and RINZO W. PATTERSON, C.I.D. 4497 v. RODETH PRESSON WHITLEY, Original Defendant, and GEORGE W. BOONE, Additional Defendant.

(Filed 14 January, 1966.)

Appeal by plaintiffs from Latham, J., March 1965 Civil Session OÍ ÁLAMANCE.

Four civil actions to recover damages for personal injuries suffered by plaintiffs in an automobile accident. They were consolidated for trial.

Plaintiffs were guest passengers in an automobile operated by one George W. Boone. The accident occurred about 8:30 P.M. 8 November 1962, on N. C. Highway 49 about 9 miles south of Burlington in Alamance County. The highway runs generally north and south and at the place of the accident it curves right for southbound traffic, left for northbound traffic. The hardsurface is 18 feet wide. There is an embankment to the west of the highway.

This is plaintiffs’ account of the accident. Boone was driving northwardly at a speed of 45 miles per hour. As he entered the curve he saw the bright lights of defendant’s car approaching from the north and dimmed his lights. He was in his proper righthand lane. Defendant’s car was partially in the east (Boone’s) lane and ran head-on into Boone’s car. The left fronts of both cars were extensively damaged, and plaintiffs were injured.

Defendant’s version: Defendant was travelling south at a speed of 45 to 50 miles per hour. She saw the bright lights of Boone’s car approaching from the south. She dimmed her lights but Boone failed to dim his; his lights blinded her. When the Boone car was about 65 feet away she observed that it was in her (the west) lane of travel. The embankment was on her right. She turned left, partially into the east lane, and Boone pulled back into the east lane and the cars collided.

Plaintiffs allege that defendant was negligent m that she was driving recklessly, failed to reduce speed, failed to maintain control and keep a proper lookout, failed to yield one-half of the highway. Defendant alleges and contends that she was faced with a sudden emergency and acted as an ordinarily prudent person would under the circumstances.

The jury found that plaintiffs were not injured by the negligence of defendant. Accordingly, judgments were entered in favor of defendant.

Hines & Dettor for plaintiffs.

Cooper Cooper for defendant.

Pee CuRiam.

Plaintiffs contend that the judge erred in his instructions to the jury with respect to lookout, control and sudden emergency. We find these instructions in substantial compliance with the rules laid down by this Court. Plaintiffs further contend that the court erred in failing to charge with respect to reckless driving and the duty of defendant to decrease speed. These legal principles do not clearly apply to the evidence adduced. There is no evidence that defendant did or did not reduce speed. The only evidence of defendant’s speed is her statement that she was travel-ling at 45 to 50 miles per hour. The speed limit was 55. The evidence is in sharp conflict as to which driver failed to dim lights and which was operating in the wrong lane of travel. The jury resolved these matters in favor of defendant and found that she, in the sudden emergency created by Boone’s wrongful conduct, acted as an ordinarily prudent person would have acted under the circumstances. The verdict is supported by evidence.

No error.