Aldridge Ex Rel. Aldridge v. Hasty

82 S.E.2d 331, 240 N.C. 353, 1954 N.C. LEXIS 442

• Court: Supreme Court of North Carolina
• Decided: June 4, 1954
• Docket: 597
• Status: Published

Opinion

BaeNhixl, O. J.

After the pleadings were filed, the plaintiff sought and obtained leave to examine both defendants prior to trial as provided by General Statutes ch. 1, art. 46. The defendant Burns, at the time the examination was had and in the trial below, moved to suppress the examination of Hasty for the reason that “the application therefor sets out no facts specifying the information sought or the purpose therefor,” and “that the Clerk making the order for the examination found no such facts.” The motion was overruled, and the plaintiff offered said examination in evidence as against both defendants.

Appeal of BttkNs.

This defendant excepted to the denial of his motion to suppress the examination of Hasty and to the admission of the same in evidence as against him. These exceptions are made the bases of exceptive assignments of error and are duly brought forward and discussed in this appellant’s brief. They present for decision the only questions.of sufficient merit to require discussion.

In 3951 the General Assembly, by the adoption of ch. 760, S.L. 1951, now General Statutes ch. 1, art. 46, repealed our old statute which provided for the examination of adverse parties and substituted in lieu thereof a new statute which in many respects is entirely different in substance and in the procedure provided. Under the terms of the Act a litigant may examine any other party to the action : “(1) For the purpose of obtaining information necessary to prepare a pleading or an amendment to a pleading, or (2) For the purpose of obtaining evidence to be used at the trial, or at any hearing incident to the trial, or (3) For both purposes.” G.S. 1-568.3.

We are interested here only in those provisions of the Act which relate to the examination of a party after the pleadings have been filed.

After the “examining party” and “the party to be examined” have both filed their pleadings, “an examination is a matter of right and may be had as provided by G.S. 1-568.11.” The examining party must apply to the clerk or judge for an order for the examination and his “application must be in the form of, or supported by, an affidavit showing: (1) That the action has been commenced; (21 That the applicant has filed complaint, petition or answer; (3) That the applicant desires to examine a designated person who has filed a petition, complaint or answer or on whose behalf a petition, complaint or answer has been filed; (4) That the exami nation should be held at a place designated in the affidavit, together with facts showing' the reasons therefor.” G.S. 1-568.11. ■ '•

“If the judge or clerk finds that the facts are as set out in the affidavit, he shall make an order: (1) Appointing a commissioner to hold the examination; (2) Fixing the time and place of the examination, subject to the provisions of G.S. 1-568.5, and (3) Directing the person to be examined to appear before the commissioner at such time and place for examination.” G.S. 1-568.11 (c). G.S. 1-568.5, in so far as it is pertinent here, provides that the time and place of the examination may be changed by agreement of the parties or “for good cause shown,” by the order of the clerk.

The application filed by the plaintiff is verified and contains all the information thus required by the statute other than the “facts showing the reasons” for requesting' that the examination be held at the courthouse in Stanly County as required by G.S. 1-568.11 (b) (4), that is, it alleges no facts in support of that request other than the allegation that Burns and Hasty are residents of Stanly County.

¥e are not quite sure we comprehend the underlying purpose of the provision contained in G.S. 1-568.11 (b) (4). If the Legislature intended to require the applicant to state the reasons why he desires the examination or the information he seeks to obtain, it failed to use language which gives expression to that intent. After the pleadings are filed, the examination is available to the applicant as a matter of right. And there could be no legitimate reason therefor — after the parties have pleaded — other than to obtain evidence to be used at the trial. Furthermore, the language relied on is a part of subsection (b) (4). It relates exclusively to, and is a part of the “showing” to be made by the petitioner as required by that particular subsection. The “reasons” to be alleged are the reasons for naming the place for the hearing designated in the petition.

It is alleged in the petition that the parties to be examined are residents of Stanly County. The courthouse is the place provided for judicial hearings. These are, we think, sufficient reasons for requesting that the examination be had at the courthouse of the county of defendants’ residence. And, in any event, we hold that, under the circumstances of this case, the failure to state other and additional reasons — if indeed such exist — does not constitute a fatal defect in the application.

Notice of the examination was served on both Burns and Hasty as required by G.S. 1-568.14. Both appeared in person and by counsel and participated in the examination. Hence the deposition was admissible in evidence as against Burns, G.S. 1-568.24, subject to his right to except to the competency, relevancy, or materiality of the testimony as provided by the statute, G.S. 1-568.23, 1-568.24. This right on his part was fully protected by the court below.

Even so, be contends all tbe evidence tends to sbow that at tbe time of tbe collision be bad passed some distance beyond plaintiff wbo was standing outside tbe bounds of tbe highway, and that therefore be owed no duty to plaintiff tbe breach of which would give rise to liability on bis part for tbe injuries inflicted by tbe Hasty automobile; and that, even if be violated a traffic regulation, neither tbe injury suffered by plaintiff nor any such like injury was reasonably foreseeable as a result thereof.

These contentions present squarely for decision three questions: (1) Did this defendant breach any legal duty be owed tbe plaintiff; (2) where tbe negligence relied on by plaintiff is tbe violation of a criminal statute, is foreseeability a condition of liability, and, if so, (3) does tbe evidence offered warrant and support tbe inference that defendant, under tbe facts here disclosed, could and should have foreseen that tbe injury suffered by plaintiff or some like injury was likely to result ?

Our motor traffic regulations are not intended merely to protect those wbo are using tbe highways. They are designed to protect tbe life, limb, and property of any and every person on or about tbe highway wbo may suffer injury to bis person or damage to bis property as a natural and proximate result of tbe violation thereof. Therefore, this defendant owed to plaintiff and all other persons similarly situated tbe duty to observe and obey tbe positive mandates of our motor vehicle traffic regulations.

Strictly speaking, a violation of a criminal statute constitutes a positive, affirmative tort which perhaps should never have been put in tbe category of negligence. It would seem that this view prevails in some jurisdictions where it is held that foreseeability is not a condition of liability. In these jurisdictions tbe rule that the tort-feasor is liable for any consequence that may flow from bis unlawful act as the natural and probable (or proximate) result thereof, whether be could foresee or anticipate it or not, prevails. It is presumed that be intended whatever resulted from bis unlawful act. Cooley on Torts, sec. 50.

In tbe past this rule has received tbe sanction of this Court by direct decision as well as by way of obiier dicta. Drum v. Miller, 135 N.C. 204; Starnes v. Manufacturing Company, 147 N.C. 556; Leathers v. Tobacco Company, 144 N.C. 330; McGowan v. Manufacturing Company, 167 N.C. 192, 82 S.E. 1028; Hodges v. R. R., 179 N.C. 566, 103 S.E. 145; Watson v. Construction Company, 197 N.C. 586, 150 S.E. 20.

'But tbe trend of our decisions since tbe advent of tbe automobile has been to treat tbe breach of a criminal law as an act of negligence per se unless otherwise provided in the statute. Godfrey v. Coach Company, 201 N.C. 264, 159 S.E. 412; James v. Coach Company, 207 N.C. 742, 178 S.E. 607; Whitaker v. Car Company, 197 N.C. 83, 147 S.E. 729; and Albritton v. Hill, 190 N.C. 429, 130 S.E. 5 (exceeding speed limit); King v. Pope, 202 N.C. 554, 163 S.E. 447, and Norfleet v. Hall, 204 N.C. 573, 169 S.E. 143 (reckless driving and speeding); Hoke v. Greyhound Corporation, 226 N.C. 692, 40 S.E. 2d 345, and Gillis v. Transit Corporation, 193 N.C. 346, 137 S.E. 153 (failure to keep to the right); Burke v. Coach Company, 198 N.C. 8, 150 S.E. 636 (parking on highway); Holland v. Strader, 216 N.C. 436, 5 S.E. 2d 311 (failure to give hand signal).

“All of the decisions of this State since Ledbetter v. English, 166 N.C. 125, 81 S.E. 1066, concur in the view that the violation of an ordinance or of a statute designed for the protection of life and limb is negligence per se. Notwithstanding, the same decisions do not permit recovery for the mere violation of the statute, unless there was a causal relation between the violation and the injury.” Ham v. Fuel Company, 204 N.C. 614, 169 S.E. 180; Holland v. Strader, supra.

“According to the uniform decisions of this Court, the violation of a statute imposing a rule of conduct in the operation of a motor vehicle and enacted in the interest of safety has been held to constitute negligence per se, but before the person claiming damages for injuries sustained can be permitted to recover he must show a causal connection between the injury received and the disregard of the statutory mandate . . .” Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 29 S.E. 2d 740.

The conclusion that the violation of a criminal statute designed and intended to protect citizens against injury to their persons or damage to their property constitutes a wrongful act which may be made the basis of an action founded on allegations of negligence is sound. Negligence is the breach of some duty imposed by law. This is the commonly accepted brief and general definition of negligence, and the violation of a motor vehicle trafile regulation is a breach of a duty imposed by law for the protection of individuals and their property.

When the action is for damages resulting from the violation of a motor vehicle regulation, does the doctrine of foreseeability apply? We are constrained to answer in the affirmative.

Whatever the conflict of decision in other jurisdictions on this question may be, it is uniformly held that to entitle a plaintiff to recover in an action bottomed on the violation of a criminal statute it must be made to appear that the injury or damage complained of was the natural and probable result of such violation.

Causal connection between the unlawful act committed and the injury or damage sustained must be shown; that is to say, proximate cause must he ..established. And we relate foreseeability, to-, proximate cause as an essential element thereof.

“Foreseeable injury is a requisite of proximate cause, and proximate cause is a requisite for actionable negligence, and actionable negligence is a requisite for recovery in an action for personal injury negligently inflicted.” Osborne v. Coal Company, 207 N.C. 545, 177 S.E. 796, and cases cited; Wood v. Telephone Co., 228 N.C. 605, 46 S.E. 2d 717; Shaw v. Barnard, 229 N.C. 713, 51 S.E. 2d 295.

Consequently, in this as in most jurisdictions, to establish proximate cause foreseeable injury must be made to appear.

We should note, however, for the benefit of Bench and Bar, that when the plaintiff relies on the violation of a motor vehicle traffic regulation as the basis of his action that, unless otherwise provided in the statute, the common law rule of ordinary care does not apply. The statute prescribes the standard, and the standard fixed by the Legislature is absolute. 38 A.J". 831, see. 160. Proof of the breach of the statute is proof of negligence. In essence, that is the meaning of pier se.

The violator is liable if injury or damage proximately results, irrespective of how careful or prudent he has been in other respects. No person is at liberty to adopt other methods and precautions which in his opinion are equally or more efficacious to avoid injury. 38 A.J. 831, sec. 160; Northern Indiana Transit v. Burk, 89 N.E. 2d 905.

The evidence is such as to compel the conclusion that Burns violated the express provisions of Gr.S. 20-154 and Gf.S. 20-140. He drove his vehicle to the left across the lane of traffic of Hasty’s approaching automobile at a time and under circumstances which rendered a collision inevitable. He knew, or should have known, that his conduct in so doing would probably deflect the course of Hasty’s vehicle and cause it to go outside the bounds of the highway and injure some bystander. That was the natural and proximate result of his unlawful conduct which he could have reasonably foreseen and for which he must answer in damages.

The other exceptive assignments of error are without substantial merit. On this record this defendant has no reasonable cause to cherish the hope that a retrial would result in a verdict more favorable to him on the issue of negligence, and, in the absence of error on the issue of damages, we do not grant a new trial merely to afford the defendant an opportunity to try to induce another jury to reduce the amount of recovery. As to this defendant, the judgment must be affirmed.

Appeal oe Hasty.

This brings us to the one decisive question presented by the appeal of defendant Hasty. Did the court below err in denying his motion for judgment as in case of involuntary nonsuit ?

That Hasty was not guilty of any actionable negligence which would make him liable to Burns or a passenger on the Burns vehicle, Butner v. Spease, 217 N.C. 82, 6 S.E. 2d 808, does not necessarily mean that the evidence exculpates him as to the plaintiff. The relations between Burns and Hasty on the one hand, and Hasty and plaintiff on the other, were quite different.

This defendant was traveling in the eastern or northbound lane of travel which was his right side of the highway. Burns cut his station wagon to the left diagonally across and upon the Hasty lane of travel at a time when Hasty’s vehicle was only twenty or twenty-five feet away. The road was straight. It was in the daytime. The scene was in the rural section of the county, and no special hazards existed which required Hasty to reduce his speed below the maximum provided by law. And in the absence of warning, he was not required to' anticipate and guard against the negligent conduct of Burns. Under these circumstances, irrespective of his speed, Hasty could not have avoided a collision with the Burns station wagon. Even if he was operating his vehicle at an unlawful rate of speed, as between him and Burns or a passenger on the Burns vehicle, his conduct in so doing may not be deemed a proximate cause of the collision. The conduct of Burns rendered the collision unavoidable, insulated any prior negligence of Hasty, and must be held to be the sole proximate cause of the original collision. On this phase of the ease, the line of decisions represented by Butner v. Spease, supra, is controlling.

Neither may plaintiff recover judgment against this defendant on the theory his violation of our statute regulating the speed of motor vehicles, G.S. 20-141, was one of the proximate causes of the Burns-Hasty collision.

But plaintiff’s cause of action is not made to depend on this one allegation. He asserts that, even if it be held — as we do hold — that the unlawful conduct of Burns insulated any prior negligence on the part of Hasty in respect to, and constituted the sole proximate cause of, the original collision, this defendant was operating his vehicle at such an excessive rate of speed that he was unable thereafter to control his automobile or to stop before striking plaintiff, who was standing outside the bounds of the highway several hundred feet ahead; that the loss.of control of his vehicle and his inability to stop within a reasonable distance without leaving the highway was due to his excessive speed and not to his loss of consciousness. In support of these contentions, he relies on the line of cases represented by Riggs v. Motor Lines, 233 N.C. 160, 63 S.E. 2d 197.

Non constat Hasty’s negligence, if any, was not one of the proximate causes of the original collision, has plaintiff offered evidence sufficient in probative force to require the submission of an issue of negligence as against him? On this question we concur in the view of the plaintiff that Riggs v. Motor Lines, supra, and like decisions of this Court are controlling, and that this question must be answered in the affirmative.

Hasty testified, in part, that he did not remember a thing after the collision until his car stopped; that he was “stove up”; that he does not remember hitting the bank; and that it was the collision “and the bank and all the rest of the hits” that caused him to be “stove up,” and unable to remember what happened. He repeated these statements in various forms on his pretrial examination.

The original Act, ch. 760, S.L. 1951, provides that any party using the examination of an adverse party thereby makes the party examined his witness, G.S. 1-568.25 (a), and denies him the right to cross-examine such adversary when and if he becomes a witness at the trial, G.S. 1-568.25 (b). This section, however, was amended by ch. 885, S.L. 1953. This latter Act deletes the provision that “the party who introduces the deposition in evidence . . . does make such person his witness” in subsection (a), and revises the language of subsection (b). Under this amendment, the examining party may cross-examine his adversary whose deposition he has used, if and when such adversary becomes a witness in his own behalf at the trial, and may contradict him but “may not impeach his credibility except by the showing of prior inconsistent statements upon proper foundation laid.” Ch. 885, S.L. 1953.

So then, under the statute as it now exists, the plaintiff, by introducing his deposition, did not make Hasty his witness and is not bound by the adverse statements made by him during his examination. Instead, we are to consider only so much of the pretrial testimony of Hasty as tends to establish plaintiff’s cause of action or to explain other testimony offered in plaintiff’s behalf. Hartley v. Smith, 239 N.C. 170. We must consider all the testimony, but in so doing we must draw the conclusion most favorable to the plaintiff and leave it for a jury to reconcile the inconsistent, conflicting, or contradictory testimony. Maddox v. Brown, 232 N.C. 244, 59 S.E. 2d 791; Sessoms v. McDonald, 237 N.C. 720, 75 S.E. 2d 904; Jackson v. Hodges, Comr. of Insurance, 232 N.C. 694, 62 S.E. 2d 326; Emery v. Insurance Co., 228 N.C. 532, 46 S.E. 2d 309.

When so considered, does it explain the movements of the Hasty automobile, the damage it did, and the distance it traveled after the collision so as to compel the one conclusion that it was all attributable to Hasty’s condition produced by the original collision and not to his speed, or is there other conflicting evidence tending to prove that Hasty was traveling at an excessive rate of speed, and that such unlawful speed was at least one of the proximate causes of the injuries suffered by plaintiff?

For us to accept as determinative and conclusive this defendant’s oft-repeated statement that he did not know what happened after his right front fender came in contact with the right front side of the station wagon; and to hold that it explains what happened after he collided with the Burns vehicle and completely exonerates him from any liability to plaintiff would perforce require us to ignore other contradictory statements and disregard the testimony which tends to show that the defendant was traveling at an excessive rate of speed.

Tbis defendant testified that immediately after bis right front fender came in contact witb tbe Burns vehicle, be went to bis left of tbe highway, across tbe western shoulder thereof, up an embankment, into tbe Aldridge yard; that there was “just a ‘lam bamming’ ” when be bit tbe automobiles in tbe driveway, and that he “just came to a easy stop” in tbe plowed field. These are facts be could not know and about which be could not testify if be was unconscious at tbe time.

When bis ear stopped be got out and “hollered for bis children”; went to look after bis wife who apparently bad been burled from tbe vehicle when it struck tbe embankment, and then walked down tbe road to tbe filling station and talked to Burns.

After tbe impact tbe Hasty vehicle crossed to tbe left side of tbe road, traveled some distance down tbe highway ditch, and climbed tbe highway embankment. When it climbed or jumped tbe embankment, it hurdled through tbe air several feet off tbe ground from tbe walkway to tbe driveway — a distance of forty or fifty feet. There it struck the two parked automobiles, knocking one of them twenty feet and completely around. It also struck plaintiff who was standing at tbe parked cars and burled him fifty-nine feet. It knocked off plaintiff’s left shoe and cast it forty-six feet beyond plaintiff's body. It then plowed through tbe wet field until it came to rest ninety-nine feet from tbe driveway. It stopped only when it bad mired so deep it could go no further. “. . . tbe further tbe car tbe deeper tbe ruts.”

'Witnesses testified that as be approached and passed through tbe Ald-ridge yard, be was traveling very fast and, as some expressed it, “was flying.” While no witness undertook to give tbe distance from tbe point of tbe original collision to tbe point where tbe Hasty vehicle finally stopped, other testimony as to distances makes it appear that it must have been several hundred feet. Tbe filling station is one hundred yards south of tbe Aldridge residence, and it is at least 140 feet from tbe Aldridge walkway to tbe point where tbe car stopped.

These facts and circumstances about which tbe plaintiff offered evidence are sufficient to support a finding that tbis defendant’s loss of control of bis vehicle and bis inability to stop within a reasonable distance was due to excessive speed and not to a loss of consciousness. At least tbe jury may so find — and that is tbe question we are required to decide.

Non constat Hasty could not reasonably foresee, and was not required to anticipate, tbe wrongful and unlawful conduct of Burns, if be was at tbe time operating bis automobile at an unlawful speed and such unlawful speed was tbe reason, or one of tbe reasons, why be could not stop within a reasonable distance and without traveling outside tbe bounds of tbe highway, crashing into tbe two automobiles, and striking plaintiff, then and in that event bis unlawful speed constitutes at least one of tbe proxi mate causes of the injuries suffered by plaintiff. If the jury should so find, then the conduct of Burns did not break the line of causation as to plaintiff but merely accelerated the result of his (Hasty’s) negligence. As between Hasty and plaintiff, the conduct of Burns was only a contributing or concurring cause. Riggs v. Motor Lines, supra; Banks v. Shepard, 230 N.C. 86, 52 S.E. 2d 215.

This subject is fully discussed in Riggs v. Motor Lines, supra. Further discussion at this time would, serve no useful purpose. Suffice it to say that the line of cases represented by that decision is controlling here.

The physical facts at the scene of a collision may disclose that the operator of a vehicle involved in the accident was traveling at an excessive speed. Riggs v. Motor Lines, supra. We conclude, therefore, that the evidence of the physical facts and other testimony offered by plaintiff is sufficient to repel this defendant’s motion for judgment of nonsuit. It is for a jury to say whether defendant’s inability to stop before colliding with plaintiff was due to his alleged loss of consciousness or to his alleged excessive speed, or to the conduct of Burns and notwithstanding the fact he (Hasty) was traveling at a lawful speed.

This appellant in apt time prayed the court to charge the jury that he was under no duty of anticipating the negligent and unlawful conduct of Burns and that, instead, he had a right to assume and to act upon the assumption that Burns would exercise ordinary care for his own safety and the safety of others on the highway. The prayers for instruction are in amplified form. As the principle of law incorporated therein and not the exact wording thereof determines the materiality and propriety of the proposed instruction, we need not quote it verbatim. Reference to the principle of law he sought to have applied to the facts in the case is sufficient.

' The court gave the substance of the prayers for instructions but it did so in the form of a contention made by this appellant. This will not suffice. He was entitled to the instructions coming from the judge as the law in the case, applicable to the facts relating to the circumstances of the original collision. As it will be somewhat difficult for a layman, in any event, to distinguish between the effect of the negligence, if any, of Hasty as it relates to the original impact on the one hand, and to the injuries suffered by the plaintiff on the other, we deem the failure of the court to instruct the jury fully on this principle of law as requested sufficiently prejudicial to entitle this defendant to a new trial.

As to defendant Burns — No error.

As to defendant Hasty — New trial.