Taylor v. Brake , 245 N.C. 553 ( 1957 )

96 S.E.2d 686 (1957) 245 N.C. 553

James O. TAYLOR
v.
Alfred Junius BRAKE and Soloman Anderson.

No. 91.

Supreme Court of North Carolina.

February 27, 1957.

Robert D. Wheeler, Grifton, and Owens & Langley, Kinston, for plaintiff, appellant.

James & Speight, Greenville, for defendants, appellees.

PARKER, Justice.

For present purposes, the plaintiff's evidence is to be taken as true, and he is entitled to every reasonable intendment and legitimate inference fairly deducible therefrom. Scarborough v. Calypso Veneer Co., 244 N.C. 1, 92 S.E.2d 435; Polansky v. Miller's Mutual Fire Ins. Ass'n, 238 N.C. 427, 78 S.E.2d 213. Defendant's evidence in direct conflict with that of plaintiff is not to be considered by the court on a motion for a compulsory nonsuit. Lawrence v. Bethea, 243 N.C. 632, 91 S.E.2d 594; Brafford v. Cook, 232 N.C. 699, 62 S.E.2d 327.

At the intersection of Coleman Avenue and Holly Street there were no stop signs and no right-of-way signs, and there is no evidence that any stop or caution lights were there. As they approached the intersection, plaintiff's Mercury was approaching from the defendants' left, and the defendant Brake was driving the Ford and approaching from plaintiff's right.

"When two automobiles approach or enter an intersection * * * at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right," with certain specified exceptions, which are not relevant to the facts of the instant case. G.S. § 20-155(a). "Two motor vehicles approach or enter an intersection at approximately the same time within the purview of these rules whenever their respective distances from the intersection, their relative speeds, and the other attendant circumstances show that the driver of the vehicle on the left should reasonably apprehend that there is danger of collision unless he delays his progress until the vehicle on the right has passed. (Many cases are cited in support of the statement.) A corollary of this proposition may be state conversely in these words: When the driver of a motor vehicle on the left comes to an intersection and finds no one approaching it on the other street within such distance as reasonably to indicate danger of collision, he is under no obligation to stop or wait, but may proceed to use such intersection as a matter of right." State v. Hill, 233 N.C. 61, 62 S.E.2d 532, 534. This Court has also said in Kennedy v. Smith, 226 N.C. 514, 39 S.E.2d 380, 381: "However, this statutory rule is based upon the assumption that the two vehicles approach or enter the intersection at approximately the same time, and does not apply if the driver on the right, at the time he approaches the intersection and before reaching it, in the exercise of reasonable prudence ascertains that the vehicle on his left has already entered the intersection."

G.S. § 20-155(b) states "the driver of a vehicle approaching but not having entered an intersection * * *, shall yield the right-of-way to a vehicle already within such intersection." Bennett v. Stephenson, 237 N.C. 377, 75 S.E.2d 147.

Plaintiff contends that the case should have been submitted to the jury on the theory that he was already within the intersection, when the defendant Brake approached it. This Court said in Cox v. Hennis Freight Lines (Matthews v. Hennis Freight Lines), 236 N.C. 72, 72 S.E.2d 25, 28: "The court can not submit a case to the jury on a particular theory unless such theory unless such is supported by both the pleadings and the evidence." Plaintiff has not alleged anywhere in his complaint that he was already within the intersection, when the defendant Brake approached the intersection but had not entered it, nor has he testified that he entered the intersection first. It is true that plaintiff alleged the defendants were negligent by "negligently, recklessly and carelessly failing to yield the right-of-way to this plaintiff's automobile as by law required." "To characterize an act or course of conduct as negligent without more is insufficient. As stated in Mcintosh on Prac. and Pro., sec. 388, `In negligence cases, a general allegation of negligence is insufficient and the facts constituting negligence must be given and that it was the cause of plaintiff's injury.' "Fleming v. Carolina Power & Light Co., 232 N.C. 457, 61 S.E.2d 364, 368. This allegation is insufficient to support plaintiff's theory that plaintiff had the right-of-way by virtue of G.S. § 20—155(b).

Even if plaintiff had alleged facts to show that he had the right-of-way by virtue of G.S. § 20-155(b), he has no evidence to support such an allegation. He approached the intersection about 20 miles an hour, took his foot off the accelerator, put it on the brake and proceeded to slow down. Brake approaching the intersection, at about 25 miles an hour, according to plaintiff's evidence, had the right to assume that plaintiff approaching from his left and slowing down would yield the right-of-way to the vehicle on the right driven by him, and stop or slow down sufficiently to permit him to pass in safety. Bennett v. Stephenson, supra; Chaffin v. Brame, 233 N.C. 377, 64 S.E.2d 276. About 8 to 10 feet, or maybe a little more, from the intersection plaintiff looked to the right and left on Coleman Avenue, along which street he could see 100 to 125 feet, and not seeing any traffic on the avenue—he did not look again—he took his foot off the brake, put it on the accelerator, and drove into the intersection. He did not see defendants' car, until it hit him. We are of opinion that plaintiff's evidence is not susceptible of the reasonable inference that he was within the intersection first, and we are supported in our opinion by the fact plaintiff did not see fit to allege it.

It was plaintiff's duty "not merely to look, but to keep an outlook in the direction of travel; and he is held to the duty of seeing what he ought to have seen." Wall v. Bain, 222 N.C. 375, 23 S.E.2d 330, 333.

If plaintiff had seen the Ford approaching the intersection on his right at 25 miles an hour, as it was his duty to see it, he should have reasonably apprehended that there was danger of a collision, unless he delayed his progress until defendants' Ford on the right had passed through the intersection. The evidence, considered in the light most favorable to plaintiff, presents a case when two automobiles approach or enter an intersection at approximately the same time, as the applicable statute has been construed by this Court, particularly in State v. Hill, supra, and it was the duty of plaintiff, the driver of the vehicle on the left, to yield the right-of-way to the defendants' vehicle on the right.

In order to make out a case for the jury plaintiff is required to have a sufficient pleading and to present probative facts from which negligence and causal relation can reasonably be inferred. In a consideration of the evidence the essential requirement is that mere speculation be not allowed to do duty for probative facts. A consideration of all the evidence favorable to plaintiff leads us to the conclusion that it does not make out a case of negligence against the defendants sufficient to carry the case to the jury.

Donlop v. Snyder, 234 N.C. 627, 68 S.E.2d 316, 318, relied on by plaintiff, is distinguishable. In that case plaintiff testified defendant told him at the hospital, "he saw me in the intersection but was coming so fast he could not stop." Kennedy v. Smith, supra, relied on by plaintiff, is also distinguishable.

The judgment of nonsuit below is

Affirmed.

BOBBITT, J., dissents.