Conley Ex Rel. Conley v. Pearce-Young-Angel Co.

29 S.E.2d 740, 224 N.C. 211, 1944 N.C. LEXIS 454

• Court: Supreme Court of North Carolina
• Decided: April 12, 1944
• Status: Published

Opinion

BaeNHILL, J.

These appeals were brought up on three separate records. We may note in this connection that when the cases were consolidated for trial they became one case for the purpose of trial and appeal. Only one record was required.

The court in its charge instructed the jury in part as follows:

“The court charges you as a matter of law that if you find the evidence to be true, of these plaintiffs and all the witnesses offered by the plaintiffs, that the driver of the car in which the plaintiffs. were riding, that that driver was guilty of negligence; and the court also charges you that the driver of the car in which plaintiffs were riding, that that negligence did at least become one of the proximate causes that brought this event about.

“And if you find that evidence to be true and believe what they say about it, that the driver of this firm’s car was guilty of negligence and his negligence at least becomes one of the proximate causes that helped to produce this collision and his injury.”

The defendant excepts to the second paragraph above quoted.

This was a peremptory charge based on plaintiff’s evidence alone. While the jury was instructed that defendant contended the jury should not believe the testimony offered by the. plaintiffs and should find the facts as testified to by witnesses for the defendant, it inadvertently failed to go further and apply the law to the evidence offered by defendant on this particular aspect of the case, or to require the finding of negligence and proximate cause from a consideration of all the evidence. Under the circumstances of this ease it must be held for error for two reasons.

1. The evidence was in sharp conflict as to the relative positions of the two vehicles at the time defendant’s truck was stopped on the highway. Yiolation of the statute, it is true, constitutes negligence per se. But did the defendant’s agent fail to comply witb its terms? His evidence does not tend to so show.

Mere stopping on the highway is not prohibited by law, and the fact of stopping in itself does not constitute negligence. Leary v. Bus Corp., 220 N. C., 745, 18 S. E. (2d), 426. It is stopping without giving a signal by hand and arm “or by any approved mechanical or electrical signaling device” approved by the Department of Motor Yehicles whenever the operation of any other vehicle may he affected by such movement. G. S., 20-154 (sec. 116, ch. 407, Public Laws 1937).

Hence, the question of negligence is for the jury to decide, and is to be decided upon a consideration of all the testimony.

2. Proximate cause is an inference of fact, to be drawn from other facts and circumstances. If the evidence be so slight as not reasonably to warrant the inference, the court will not leave the matter to the speculation of the jury. Lincoln v. R. R., 207 N. C., 787, 178 S. E., 601; Hinnant v. R. R., 202 N. C., 489, 163 S. E., 555.

It is only when the facts are all admitted and only one inference may be drawn from them that the court will declare whether an act was the proximate cause of an injury or not. But that is .rarely the case. Taylor v. Stewart, 172 N. C., 203, 90 S. E., 134. Hence, “what is the proximate cause of an injury is ordinarily a question for the jury. ... It is to be determined as a fact in view of the circumstances of fact attending it.” R. R. v. Kellogg, 94 U. S., 464, 24 L. Ed., 256; Hardy v. Lumber Co., 160 N. C., 113, 75 S. E., 855; Newton v. Texas Co., 180 N. C., 561, 105 S. E., 433; Albritton v. Hill, 190 N. C., 429, 130 S. E., 5; Earwood v. R. R., 192 N. C., 27, 133 S. E., 180; Harper v. Bullock, 198 N. C., 448, 152 S. E., 405; McAtee v. Mfg. Co., 166 N. C., 448, 82 S. E., 857; McMillan v. Butler, 218 N. C., 582, 11 S. E. (2d), 877; Mulford v. Hotel Co., 213 N. C., 603, 197 S. E., 169; James v. Coach Co., 207 N. C., 742, 178 S. E., 607; Pearson v. Stores Corp., 219 N. C., 717, 14 S. E. (2d), 811.

That the act complained of is the violation of a statute and constitutes negligence per se does not take the case out of the general rule.

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, and what is the proximate cause of the injury is usually a matter to be determined by the jury. Holland v. Strader, 216 N. C., 436, 5 S. E. (2d), 311; Barrier v. Thomas and Howard, 205 N. C., 425, 171 S. E., 626; Godfrey v. Coach Co., 201 N. C., 264, 159 S. E., 412; Sherwood v. Express Co., 206 N. C., 243, 173 S. E., 605; Stultz v. Thomas, 182 N. C., 470, 109 S. E., 361; Lowe v. Taylor, 196 N. C., 275, 145 S. E., 611; Stone v. Texas, 180 N. C., 546, 105 S. E., 425.

As tbe questions presented by other exceptive assignments of error may not again arise, discussion thereof would serve no useful purpose.

For the reason stated, there must be a

New trial.