Curry v. Brown , 8 N.C. App. 464 ( 1970 )

PARKER, J.

Plaintiff’s evidence, considered in the light most favorable to her and giving her benefit of every inference which may reasonably be drawn, was insufficient to permit a jury finding of any negligence on the part of defendant. The evidence discloses that defendant, while driving within the speed limit and following a station wagon in the extreme right-hand lane of a four-lane road, came to a curve to his right; that the driver of the station wagon “threw on the brakes” when confronted by a truck or van parked in the curve in their lane of travel; that defendant thereupon also applied his brakes and turned his car into the left or inside lane for traffic moving in his direction; that he was then suddenly confronted with a Chevrolet parked in the inside lane beside the van, and which he had been unable to see previously because of the curve and the parked van. Nothing in this evidence indicates that defendant was driving at excessive speed, failed to keep a proper lookout, failed to keep his car under proper control, was following too close, or was negligent in any respect.

It should be noted that the present case does not present a situation in which a following motorist collides with the rear of a vehicle moving ahead in the same direction. In certain of such cases, the mere fact of a rear-end collision with the car ahead may furnish some evidence that the following motorist was negligent as to speed, following too closely, or failing to keep a proper lookout. Clontz v. Krimminger, 253 N.C. 252, 116 S.E. 2d 804. In the present case, however, all of the evidence establishes that defendant successfully avoided striking the station wagon which had been moving ahead of him and which stopped abruptly on coming upon the parked van. The collision occurred only when defendant, after successfully avoiding the station wagon, suddenly came upon the Chevrolet parked in the inside traffic lane. Thus the present case presents a very different situation than usually presented in the rear-end collision cases involving two vehicles moving in the same direction. Even in those cases the rule stated in Clontz is by no means to be mechanically applied. “Whether in a particular case there be sufficient evidence of negligence to carry that issue to the jury must still be determined by all of the unique circumstances of each individual case, the evidence of a rear-end collision being but one of those circumstances.” Racine v. Boege, 6 N.C. App. 341, 169 S.E. 2d 913. “Where plaintiffs’ evidence shows there was no negligence as to speed, lookout and close following, or that negligence in these respects could not have been a proximate cause of the collision and damage, the rule stated in the Clontz case does not apply.” Jones v. Atkins Co., 259 N.C. 655, 131 S.E. 2d 371. Such was the situation disclosed by the evidence in the case presently before us. The mere happening of the collision under the circumstances shown by the evidence in this record furnishes no basis for drawing any inference of negligence on the part of defendant and the principle announced in Greene v. Nichols, 274 N.C. 18, 161 S.E. 2d 521, does not apply. In that case our Supreme Court held that when an automobile leaves the highway without apparent cause and inflicts injury, an inference of the driver’s actionable negligence arises which will take the case to the jury, the doctrine of res ipsa loquitur being applicable. In our opinion no such inference of driver negligence arises from the facts shown by plaintiff’s evidence in the present case, and the judgment of non-suit was properly entered.

While plaintiff was testifying on cross-examination, defendant’s counsel asked her a question concerning a prior written statement given by her. Plaintiff’s counsel asked to see the statement, and now assigns as error that .the trial judge failed to direct that the statement be given to him for examination, citing Warren v. Trucking Co., 259 N.C. 441, 130 S.E. 2d 885. In that case plaintiff’s counsel, while cross-examining a defendant witness, presented to the witness a photostatic copy of a written statement which had been previously given and signed by the witness and asked the witness both to identify his signature and to read portions of the statement which were inconsistent with the testimony of the witness at the trial. Our Supreme Court held that under such circumstances it was error for the trial judge to refuse the request of defendant’s counsel to see the statement, even though the statement was not introduced in evidence. In the present case it is not altogether clear from the record before us whether the written statement referred to was in possession of defendant’s counsel while he was cross-examining the plaintiff or even whether the statement was present in the courtroom at any time during the trial. Therefore, on the record before us the question presented in the Warren case does not clearly arise. It is clear, however, that plaintiff’s entire testimony, including her testimony given on cross-examination, bore no relationship whatsoever to the issue of defendant’s negligence, since plaintiff was unable to recall anything concerning the collision or the relevant events leading up to it. Since nonsuit was properly entered because of plaintiff’s failure to present sufficient evidence on the issue of defendant’s negligence, error, if indeed any was committed, in failing to compel defendant’s counsel to furnish the statement for inspection by plaintiff’s counsel, could not have had any prejudicial effect on this appeal. The judgment appealed from is

Affirmed.

Campbell and Vaughn, JJ., concur.