Marshburn v. Patterson , 241 N.C. 441 ( 1955 )

85 S.E.2d 683 (1955) 241 N.C. 441

R. W. MARSHBURN
v.
Billy Rae PATTERSON, Clyde Eddleman and Ethel Eddleman.
Wilbur W. MARSHBURN, by his Next Friend, Lucille C. Marshburn,
v.
Billy Rae PATTERSON, Clyde Eddleman and Ethel Eddleman.

No. 678.

Supreme Court of North Carolina.

February 4, 1955.

C. M. Llewellyn and M. B. Sherrin, Concord, for defendant-appellants.

Jordan & Wright, Greensboro, for plaintiff-appellees.

BARNHILL, Chief Justice.

During the trial of these causes in the court below, the defendants entered timely motions to dismiss the actions as to both plaintiffs as in case of involuntary nonsuit. The motions were denied and the defendants excepted. These exceptions are the bases of one of defendants' primary assignments of error.

The defendants in their brief concede there is sufficient evidence of negligence on the part of the defendant Patterson to repel their motions for judgment as in case of involuntary nonsuit. They rest their motions, as they must rest, on the alleged contributory negligence of the operator of the Marshburn automobile.

There is evidence tending to show that as the operator of the Marshburn vehicle approached the intersection, he did not look either to the right or to the left. He so testified. Had he been keeping a proper lookout, he could and would have seen the Eddleman vehicle approaching the intersection at approximately the same time. Was his negligence in failing to keep a proper lookout one of the proximate causes of the resulting collision?

When a motorist traveling on a dominant, primary highway and a motorist traveling on a servient, intersecting highway approach the intersection of the two highways so nearly at the same time that either one or the other must yield the right of way or else create a dangerous traffic hazard, it is the duty of the motorist on the servient highway to slow down and, if necessary, stop and yield the right of way. And the motorist traveling on the dominant highway, nothing else appearing, has the right to assume that the motorist on the servient highway will yield the right of way as he is by law required to do. Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25.

Therefore, in the absence of some fact or circumstance sufficient to put a man of ordinary prudence on notice that the motorist traveling on the servient highway does not intend to or cannot slow down in time to yield the right of way, a motorist on the dominant highway breaches no duty he owes the motorist on the servient highway in his failure to keep a proper lookout. Ordinarily any negligence on his part in this respect does not constitute one of the proximate causes of a collision at the intersection. Loving v. Whitton, 241 N.C. 273, 84 S.E.2d 919; Harrison v. Kapp, N.C., 85 S.E.2d 337.

When, however, a motorist on the dominant highway has time to realize, or by the exercise of proper care and watchfulness should realize, that the motorist on the servient highway is unaware of his presence, or does not intend to or cannot observe the law, or is in a somewhat helpless condition, or is apparently unable to avoid the approaching machine, the negligence of the motorist on the dominant highway may be considered one of the proximate causes of a collision at the intersection. Guthrie v. Gocking, 214 N.C. 513, 199 S.E. 707; Cory v. Cory, 205 N.C. 205, 170 S.E. 629; James v. Carolina Coach Co., 207 N.C. 742, 178 S.E. 607.

That is to say, it is the duty of a motorist traveling on a through street to keep a proper lookout, and he is charged with having seen what he should have seen. When he observes a vehicle traveling on a servient street approaching the same intersection at such a high rate of speed or under such other circumstances that he, in the exercise of ordinary care, knows or should know that the motorist on the servient highway cannot or will not stop and yield the right of way, it is the duty of the motorist on the through street to reduce his speed and use all precautions reasonably at his command to avoid a collision. If the speed of the vehicle on the servient road, or some other circumstance, is such that it puts him on notice that the other motorist cannot stop, and the circumstances are such that he (the motorist on the dominant road) could avoid the collision after observing this condition, but he does not do so for the reason he is not keeping a proper lookout, then his failure to keep a proper lookout and to reduce his speed must be deemed to be one of the proximate causes of the resulting collision. Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Ferguson v. City of Asheville, 213 N.C. 569, 197 S.E. 146; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Howard v. Bingham, 231 N.C. 420, 57 S.E.2d 401; Thomas v. Thurston Motor Lines, 230 N.C. 122, 52 S.E.2d 377.

It follows that the court will not sustain a motion for judgment of involuntary nonsuit for the reason plaintiff's evidence tends to show that he failed to keep a proper lookout when the evidence in respect thereto is conflicting.

Here, on the question posed for decision the record discloses a somewhat novel situation. Plaintiff offered evidence tending to show that if the operator of the Marshburn automobile had been keeping a proper lookout he would have observed that the Eddleman vehicle was traveling at such an excessive speed that it could not be stopped before entering the intersection so as to yield the right of way. Thus he would have been put on notice he could no longer rely upon the assumption that Patterson would yield the right of way.

On the other hand, however, the defendants offered testimony tending to show that the Eddleman vehicle approached and entered the intersection at a speed of only twenty or twenty-five miles per hour. In ruling on the motion for judgment of nonsuit we must consider this testimony offered by defendants. They vouched for it and are in no position to insist that we disregard it and sustain the exceptions on the evidence offered by the plaintiffs alone.

Thus the evidence is conflicting as to the condition existing at the time, particularly in respect to whether the operator of the Marshburn automobile was put on notice that Patterson would not yield the right of way. Hence it was a question for the jury.

A further significant circumstance to be considered in ruling on these assignments of error is the fact that it is not made to appear how far the Marshburn vehicle was from the intersection at the time its operator should have observed the Eddleman automobile and its manner of approach. Even if the circumstances were such as to put Marshburn on notice that Patterson would not yield the right of way, was Marshburn then a sufficient distance away to reduce his speed and avoid the collision? The record fails to answer, and the absence of such proof in itself is sufficient to repel the motion.

The other exceptions directed to alleged error in the trial on the issues in the R. W. Marshburn case are not of sufficient merit to require discussion. Suffice it to say that we have examined them and find that they fail to point out prejudicial error.

However, in the Wilbur W. Marshburn case there is an assignment of error to which we must direct our attention. During the progress of the trial the court permitted this plaintiff to testify over the objection of the defendants that the Duke Clinic had estimated that plastic surgery to remove the scars on his arm, face, and under his chin would cost around $1,100. Thereafter, on the next day, the court withdrew this testimony and instructed the jury to disregard it. Then the court, in its charge, instructed the jury in part as follows:

"* * * he (plaintiff Wilbur W. Marshburn) contends * * * that he has suffered permanent injuries in that he has a disfigurement of his face and head and under his chin and that it will be necessary to eliminate that disfigurement, if he ever has it eliminated, by skin grafting which would be a long, painful and expensive operation."

It thereafter further instructed the jury that plaintiff was entitled to recover, if at all, "* * * the amount of expenses reasonably incurred by him in the treatment of his injuries, including hospital bills, doctors' bills, medicines and supplies * *."

Thus the court submitted to the jury the substance of evidence it had first admitted and then withdrawn from the consideration of the jury. Curlee v. Scales, 223 N.C. 788, 28 S.E.2d 576; State v. Wyont, 218 N.C. 505, 11 S.E.2d 473. And the testimony was not related to its probable effect on plaintiff's future earning capacity. This evidence had a direct bearing upon the amount of damages this plaintiff was entitled to recover, and the submission thereof to the jury under the circumstances here disclosed constitutes prejudicial error which entitles the defendants to a new trial in this cause.

In so holding we do not mean to say that the jury is not to consider any disfigurement caused by the injuries received by him. An outward, observable blemish, scar, or mutilation which tends to mar the appearance to the extent that it lessens or reduces the opportunities of the injured party to obtain remunerative employment might well effectuate a diminution of his future earning capacity. It is so considered under the Workmen's Compensation Act, G.S. § 97-31 (v, w); Arp v. E. A. Wood & Co., 207 N.C. 41, 175 S.E. 719; Stanley v. Hyman-Michaels Co., 222 N.C. 257, 22 S.E.2d 570. We will reserve that question until it is properly posed for decision.

Here the charge considered in the light of all the attendant circumstances leads us to the conclusion that its probable prejudicial effect was such as to warrant a new trial. It is so ordered.

In R. W. Marshburn v. Patterson—no error. In W. W. Marshburn v. Patterson— new trial.