Burchette v. DAVIS DISTRIBUTING COMPANY OF DURHAM , 243 N.C. 120 ( 1955 )

90 S.E.2d 232 (1955) 243 N.C. 120

Glenn M. BURCHETTE
v.
DAVIS DISTRIBUTING COMPANY OF DURHAM, Incorporated.

No. 386.

Supreme Court of North Carolina.

November 23, 1955.

Hayes & Hayes, North Wilkesboro, for defendant-appellant.

W. H. McElwee, North Wilkesboro, for plaintiff-appellee.

WINBORNE, Justice.

While appellant brings forward for consideration on this appeal several assignments of error, those two, Numbers 2 and 3, based upon exceptions to denial of its motions, aptly made, for judgment as of nonsuit are most strongly stressed. The principal argument advanced is that upon plaintiff's own statement as to the facts of the case he was guilty of contributory negligence as a matter of law. And defendant relies upon the principle enunciated in Weston v. Southern R. Co., 1927, 194 N.C. 210, 139 S.E. 237, that a motorist must operate his motor vehicle at night in such manner and at such speed as will enable him to stop within the radius of his lights, or within the range of his vision, and that failure to do so is negligence. The principle has been applied in these cases: Baker v. Atlantic Coast Line R. Co., 1933, 205 N.C. 329, 171 S.E. 342; Lee v. Atlantic Coast Line R. Co., 1937, 212 N.C. 340, 193 S.E. 395; Beck v. Hooks, 1940, 218 N.C. 105, 10 S.E.2d 608; Sibbitt v. R. & W. Transit Co., 1942, 220 N.C. 702, 18 S.E.2d 203; Dillon v. City of Winston-Salem, 1942, 221 N.C. 512, 20 S.E.2d 845; Pike v. Seymour, 1942, 222 N.C. 42, 21 S.E.2d 884; Austin v. Overton, 1942, 222 N.C. 89, 21 S.E.2d 887; Montgomery v. Blades, 1943, 222 N.C. 463, 23 S.E.2d 844; Allen v. Dr. Pepper Bottling Co., 1943, 223 N.C. 118, 25 S.E.2d 388; Atkins v. White Transportation Co., 1944, 224 N.C. 688, 32 S.E.2d 209; McKinnon v. Howard Motor Lines, 1947, 228 N.C. 132, 44 S.E.2d 735; Riggs v. Gulf Oil Corp., 1948, 228 N.C. 774, 47 S.E.2d 254; Tyson v. Ford, 1948, 228 N.C. 778, 47 S.E.2d 251; Parkway Bus Co. v. Coble Dairy Products Co., 1948, 229 N.C. 352, 49 S.E.2d 623; Cox v. Lee, 1949, 230 N.C. 155, 52 S.E.2d 355; Brown v. W. B. & S. Bus Lines, 1949, 230 N.C. 493, 53 S. E.2d 539; Wilson v. Central Motor Lines, 1949, 230 N.C. 551, 54 S.E.2d 53; Hollingsworth v. Grier, 1949, 231 N.C. 108, 55 S.E.2d 806; Marshall v. Southern R. Co., 1950, 233 N.C. 38, 62 S.E.2d 489; Morris v. Jenrette Transport Co., 1952, 235 N.C. 568, 70 S.E.2d 845; Morgan v. Cook, 1952, 236 N.C. 477, 73 S.E.2d 296; Harris Express Co. v. Jones, 1952, 236 N.C. 542, 73 S.E.2d 301; Singletary v. Nixon, 1954, 239 N.C. 634, 80 S.E.2d 676; Sheldon v. Childers, 1954, 240 N.C. 449, 82 S.E.2d 396.

In connection with these cases it must be borne in mind that the speed statute, G.S. § 20-141, in effect on 31 January, 1955, the date on which the collision involved in the present action took place, in so far as pertinent to case in hand, declares:

"(a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing.

"(b) Except as otherwise provided in this chapter, it shall be unlawful to operate a vehicle in excess of the following speeds:

"1. Twenty miles per hour in any business district;

"2. Thirty-five miles per hour in any residential district;

"3. Forty-five miles per hour in places other than those named in paragraphs 1 and 2 of this subsection for vehicles other than passenger cars, regular passenger vehicles, pick-up trucks of less than one ton capacity, and school buses loaded with children;

"4. Fifty-five miles per hour in places other than those named in paragraphs 1 and 2 of this subsection for passenger cars, regular passenger carrying vehicles, and pick-up trucks of less than one ton capacity.

"(c) The fact that the speed of a vehicle is lower than the foregoing limits shall not relieve the driver from the duty to decrease speed * * * when special hazard exists with respect * * * other traffic or by reason of weather * * * conditions, and speed shall be decreased as may be necessary to avoid colliding with * * * any vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.

"(d) * * *

"(e) The foregoing provisions of this section shall not be construed to relieve the plaintiff in any civil action from the burden of proving negligence upon the part of the defendant as the proximate cause of an accident."

However, the General Assembly passed an act, Chapter 1145 of 1953 Session Laws amending G.S. § 20-141(e) by adding thereto the proviso "that the failure or inability of a motor vehicle operator who is operating such vehicle within the maximum speed limits prescribed by G.S. § 20-141(b) to stop such vehicle within the radius of the lights thereof or within the rangeof his vision shall not be considered negligence per se or contributory negligence per se in any civil action, but the facts relating thereto may be considered with other facts in such action in determining the negligence or contributory negligence of such operator."

And in Section 3 of Chapter 1145 of 1953 Session Laws the General Assembly declared that "All laws and clauses of laws in conflict with this Act are hereby repealed."

So the courts must interpret the statute as it is written,—the wisdom of it being the legislative function.

Hence, interpreting the amendatory act, if the driver of a motor vehicle who is operating it within the maximum speed limits prescribed by G.S. § 20-141(b) fails to stop such vehicle within the radius of the lights of the vehicle or within the range of his vision, the courts may no longer hold such failure to be negligence per se, or contributory negligence per se, as the case may be, that is, negligence or contributory negligence, in and of itself, but the facts relating thereto may be considered by the jury, with other facts in such action in determining whether the operator be guilty of negligence, or contributory negligence, as the case may be. However this provision does not apply if it is admitted, or if all the evidence discloses, that the motor vehicle was being operated in excess of the maximum speed limit under the existing circumstances as prescribed under G.S. § 20-141(b).

Therefore, the principle applied in the cases hereinabove cited is modified only in accordance with the provisions of the amendatory act as so interpreted here by this Court.

In the light of the amendatory act, as so interpreted, the issue as to contributory negligence of plaintiff was one for the jury in the instant case. All the evidence is to the effect that the speed of the plaintiff's truck was within the maximum allowed by G.S. § 20-141(b), par. 4. Hence the motions for judgment as of nonsuit were properly overruled.

Appellant assigns as error the ruling of the trial court in permitting plaintiff to amend his complaint so as to allege damage for personal injury in sum of $10,000 in lieu of $3,500 as originally set forth to which exceptions Numbers 1 and 4, on which assignments of error of like numbers are based. The record of case on appeal shows that upon reading the pleadings and before any evidence was introduced plaintiff made motion to be allowed to so amend his complaint. The trial judge, in his discretion, allowed the motion. It is sufficient to say that this ruling is accordant with power vested in the judge by statute, G. S. § 1-163.

Other assignments of error have been given due consideration and in them prejudicial error is not made to appear.

Therefore, in the judgment from which this appeal is taken, the Court finds

No error.