Watson Seafood & Poultry Co. v. George W. Thomas, Inc.

214 S.E.2d 605, 26 N.C. App. 6, 1975 N.C. App. LEXIS 1956

• Court: Court of Appeals of North Carolina
• Decided: May 21, 1975
• Docket: No. 754DC83
• Status: Published

Opinions

MORRIS, Judge.

In its only assignment of error plaintiff contends the trial court erred in its instructions to the jury that it would be negligence to pass in an unmarked intersection in the city of Rose Hill, when all the evidence showed that the plaintiff’s driver could have no way of knowing and in fact did not know that he was in the city limits. We disagree. Plaintiff concedes that the charge was substantially in compliance with G.S. 20-150 (c).

In Adams v. Godwin, 252 N.C. 471, 114 S.E. 2d 76 (1960), the question on appeal was whether the court erred in its charge as to contributory negligence. There the collision occurred in the town of Benson, and it was agreed that no signs had been erected indicating an intersection. Though there was conflicting evidence with respect to where the collision occurred, some of the evidence placed it in the unmarked intersection. Plaintiff there was the following driver as here. Justice Higgins said:

“G.S. 20-150(c) provides: ‘The driver of a vehicle shall not overtake and pass any other vehicle proceeding in the same direction at any steam or electric railway grade crossing nor at any intersection of highway unless permitted so to do by a traffic or police officer. For the purposes of this section the word “intersection of highway” shall be defined and limited to intersections designated and marked by the State Highway Commission by appropriate signs, and street intersections in cities and towns’. The meaning of the section is that one motorist may not pass another going in the same direction under either of two conditions: (1) At any place designated and marked by the State Highway Commission as an intersection; (2) at any street intersection in any city or town. Donivant v. Swaim, 229 N.C. 114, 47 S.E. 2d 707; Cole v. Lumber Co., 280 N.C. 616, 55 S.E. 2d 86; Levy v. Aluminum Co., 232 N.C. 158, 59 S.E. 2d 632.” (Emphasis supplied.)

The court had charged the jury that if they were satisfied by the greater weight of the evidence that there were no appropriate signs marking the intersection it would not constitute an intersection within the meaning of the statute and would place no duty on the passing vehicle. With respect to the charge the Court said:

“On the issue of contributory negligence the defendant was entitled to a charge that if the jury should find by the greater weight of the evidence, the burden being on the defendant, that the plaintiff attempted to pass the defendant’s truck going in the same direction at a public street intersection, and should further find that the intersection was located within the corporate limits of the Town of Benson, her attempt so to pass would be negligence on her part; and if the jury should further find that such negligence was one of the proximate causes of her injury and damage, then the issue of contributory negligence should be answered, yes; otherwise, no. Shoe v. Hood, 251 N.C. 719, 112 S.E. 2d 543.”

Here the court charged the jury substantially in accord with the statute and Adams v. Godwin, supra.

No error.

Judge Vaughn concurs. Judge Clark dissents.