{ "id": 8554542, "name": "GEORGE W. DAVIS, Administrator of the Estate of ALICE BURTON DAVIS v. WILLIAM L. IMES", "name_abbreviation": "Davis v. Imes", "decision_date": "1972-02-23", "docket_number": "No. 7219SC116", "first_page": "521", "last_page": "531", "citations": [ { "type": "official", "cite": "13 N.C. App. 521" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "80 S.E. 2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "239 N.C. 475", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627367 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/239/0475-01" ] }, { "cite": "114 S.E. 2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "252 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624058 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/252/0506-01" ] }, { "cite": "151 S.E. 2d 556", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564514 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0643-01" ] }, { "cite": "130 S.E. 2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "259 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560727 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/259/0381-01" ] }, { "cite": "160 S.E. 2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "273 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575569 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/273/0457-01" ] }, { "cite": "180 S.E. 2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561160 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0615-01" ] }, { "cite": "178 S.E. 2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "10 N.C. App. 347", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553769 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/10/0347-01" ] }, { "cite": "125 S.E. 2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "257 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565796 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/257/0108-01" ] }, { "cite": "123 S.E. 2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "256 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572476 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/256/0277-01" ] }, { "cite": "82 S.E. 2d 384", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "240 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601286 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/240/0426-01" ] }, { "cite": "148 S.E. 2d 846", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "267 N.C. 745", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560654 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0745-01" ] }, { "cite": "150 S.E. 2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561405 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0284-01" ] }, { "cite": "158 S.E. 2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "272 N.C. 352", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572936 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/272/0352-01" ] }, { "cite": "158 S.E. 2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "272 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573437 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/272/0473-01" ] }, { "cite": "75 S.E. 2d 111", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1953, "opinion_index": 0 }, { "cite": "237 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611024 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/237/0328-01" ] }, { "cite": "144 S.E. 2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575019 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0269-01" ] }, { "cite": "69 S.E. 2d 239", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "235 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622088 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/235/0162-01" ] }, { "cite": "110 S.E. 2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "250 N.C. 665", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625705 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/250/0665-01" ] }, { "cite": "110 S.E. 2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "250 N.C. 701", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625931 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/250/0701-01" ] }, { "cite": "138 S.E. 2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "262 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569608 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/262/0550-01" ] } ], "analysis": { "cardinality": 841, "char_count": 20538, "ocr_confidence": 0.525, "pagerank": { "raw": 8.621017481241883e-08, "percentile": 0.49059250172500407 }, "sha256": "a0807059ed4121e898c60662b7de869ba86a593e126df1cb6e74e084be6e7db6", "simhash": "1:a703e76394fc85e3", "word_count": 3538 }, "last_updated": "2023-07-14T21:18:15.024983+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Morris and Parker concur." ], "parties": [ "GEORGE W. DAVIS, Administrator of the Estate of ALICE BURTON DAVIS v. WILLIAM L. IMES" ], "opinions": [ { "text": "MALLARD, Chief Judge.\nThe defendant\u2019s first contention is that the trial court erred in failing to direct a verdict or enter judgment notwithstanding the verdict for defendant, on the ground that plaintiff\u2019s intestate was guilty of contributory negligence as a matter of law. This contention is without merit.\n\u201cSince the burden of proof on the issue of contributory negligence is upon the defendants, a motion for judgment of involuntary nonsuit upon that ground should be allowed only when the plaintiff\u2019s evidence, considered alone and taken in the light most favorable to him, together with all inferences favorable to him which may reasonably be drawn therefrom, so clearly establishes the defense that no other conclusion can reasonably be drawn. Cowan v. Transfer Co., 262 N.C. 550, 138 S.E. 2d 228; Waters v. Harris, 250 N.C. 701, 110 S.E. 2d 283; Johnson v. Thompson, 250 N.C. 665, 110 S.E. 2d 306; Morrisette v. Boone Co., 235 N.C. 162, 69 S.E. 2d 239; Strong\u2019s N. C. Index, Negligence, \u00a7 26, and cases there cited.\u201d Raper v. Byrum, 265 N.C. 269, 144 S.E. 2d 38 (1965).\nIn the case before us, the evidence for the plaintiff tended to show the following: Mrs. Davis, a woman of 72 years of age, died as a result of injuries received in an accident which occurred at the intersection of a private driveway and Needmore Road, a sixteen-foot-wide rural paved road (No. 1984) in Rowan County. Plaintiff\u2019s witness Hubert Kyles testified that he saw Mrs. Davis approach the end of the driveway and stop, look in both directions, pull out into Needmore Road and proceed in an easterly direction. He also testified that he heard the defendant Imes\u2019 automobile approaching in the distance, its engine making a \u201cvery highpitched\u201d noise, and observed it traveling west on Needmore Road for a distance of approximately 200 feet until it collided \u201calmost head-on\u201d with Mrs. Davis\u2019 automobile, which had by then completed its entry into her right-hand lane of Needmore Road and had proceeded east 25 or 30 feet to the point of the collision. It was Kyles\u2019 opinion that the speed of the defendant\u2019s automobile at the time he observed it was 80 miles per hour. Another witness, Donald Kyles, testified that he too had observed the accident, had seen and heard the defendant\u2019s automobile prior to the collision, and had formed the opinion that its speed was \u201cabout seventy.\u201d The plaintiff\u2019s evidence indicated that Mrs. Davis was in her own lane of travel; that is, the south lane proceeding east, and that the Imes vehicle had crossed the center point of the road; that is, had crossed from the north lane into the south lane proceeding west, when the collision occurred, and that there were no skid marks at or near the point of collision.\nIn his complaint, the plaintiff alleged that the defendant was negligent in that:\n\u201c(a) He operated an automobile upon a highway carelessly and heedlessly in willful and wanton disregard of the rights and safety of others and without due caution and circumspection and at a speed and in a manner so as to endanger or be likely to endanger persons and property, in violation of G.S. \u00a7 20-140.\n(b) He operated an automobile upon a public highway at a speed greater than was reasonable and prudent under the conditions then existing in violation of G.S. \u00a7 20-141 (a).\n(c) He operated an automobile upon a public highway at a rate of speed in excess of 55 miles per hour, in violation of G.S. \u00a7 20-141 (b).\n(d) He failed to reduce speed when approaching and going around a curve.\n(e) He failed to reduce speed when approaching a hill-crest.\n(f) In that upon a highway of sufficient width, he failed to drive the automobile upon the right half of the highway and as closely as possible to the right-hand edge or curb thereof, in violation of G.S. \u00a7 20-146.\n(g) In that when approaching an automobile proceeding in the opposite direction he failed to pass to the right of the plaintiff\u2019s intestate\u2019s automobile and failed to give to the plaintiff\u2019s intestate at least one-half of the main-traveled portion of the roadway, in violation of G.S. 148. o\n(h) He drove on the public highways without keeping a proper lookout, without paying proper attention to his driving and without keeping the vehicle which he was driving under proper control.\u201d\nIn his answer, the defendant alleged that the plaintiff\u2019s intestate was1 contributorily negligent in that:\n\u201c(a) In emerging from a private driveway, she failed to yield the right of way to traffic on the main traveled highway, including this defendant.\n(b) She failed to keep a proper lookout and failed to keep her vehicle under proper control.\n(c) She drove her vehicle into the highway carelessly and heedlessly in willful and wanton disregard of the rights and safety of others.\n(d) She drove her vehicle on the highway without due caution and circumspection and at a speed and in a manner so as to endanger or be likely to endanger, persons and property.\u201d\nDefendant also alleged the same acts of negligence on the part of the plaintiff\u2019s intestate as the basis for his counterclaim. In reply to this counterclaim, the plaintiff denied negligence and alleged contributory negligence of the defendant as a defense.\nIt is the duty of one proceeding along a public highway to maintain a proper lookout and to exercise due care to avoid colliding with vehicles entering the highway from private premises. 60A C.J.S., Motor Vehicles, \u00a7 347. Garner v. Pittman, 237 N.C. 328, 75 S.E. 2d 111 (1953).\nThe violation of G.S. 20-141, G.S. 20-146 or G.S. 20-148, relating to speed restrictions, driving on the right side of the road and meeting other vehicles, constitutes negligence (although such negligence is not actionable unless it is the proximate cause of the injuries complained of). See Lassiter v. Williams, 272 N.C. 473, 158 S.E. 2d 593 (1968) ; Reeves v. Hill, 272 N.C. 352, 158 S.E. 2d 529 (1968); Smart v. Fox, 268 N.C. 284, 150 S.E. 2d 403 (1966) ; Anderson v. Webb, 267 N.C. 745, 148 S.E. 2d 846 (1966) ; Raper v. Byrum, supra.\nOn the other hand, G.S. 20-156 (a) requires1 that \u201cthe driver of a vehicle entering a public highway from a private road or drive shall yield the right-of-way to all vehicles approaching on such public highway.\u201d Furthermore, \u201c(i)n order to comply with this statute, a driver entering a public highway from a private drive is required to look for vehicles approaching on such highway, to look at a time when the precaution may be effective, to yield the right-of-way to vehicles traveling on the highway, and to defer entry until the movement may be made in safety. Gantt v. Hobson, 240 N.C. 426, 82 S.E. 2d 384; Garner v. Pittman, 237 N.C. 328, 75 S.E. 2d 111.\u201d Equipment Co. v. Hertz Corp. and Contractors, Inc. v. Hertz Corp., 256 N.C. 277, 123 S.E. 2d 802 (1962). See also, Smith v. Nunn, 257 N.C. 108, 125 S.E. 2d 351 (1962) ; 60A C.J.S., Motor Vehicles, \u00a7 345.\nThe defendant appellant contends, however, that we should find from a review of the evidence in the present case that the plaintiff\u2019s intestate was contributorily negligent as a matter of law, apparently because she had an \u201cunqualified duty to yield to traffic on the public highway.\u201d We do not agree. The evidence, viewed in the light most favorable to the plaintiff, tends to show that Mrs. Davis exercised due care before entering the paved road and had attained her own lane of proposed travel before being struck by the defendant. The plaintiff\u2019s evidence also showed that, looking eastward from the private drive, in the direction from which the defendant was approaching, Mrs. Davis had an unobstructed view of the road for about 100 feet and a partially obstructed view for another 25 to 50 feet beyond. If, as an eyewitness to the accident testified, the defendant was driving his vehicle at 80 miles per hour just prior to the collision, he would have covered the portion of the road visible to Mrs. Davis east from the private driveway in just slightly over one second.\nIn his brief the appellant relies upon the cases of Blackwell v. Butts, 10 N.C. App. 347, 178 S.E. 2d 644 (1971), and Garner v. Pittman, supra. Blackwell was reversed by the Supreme Court in 278 N.C. 615, 180 S.E. 2d 835 (1971).\nIn Blackwell, the Supreme Court also distinguished Garner v. Pittman, supra, (relied upon by the defendant in the present case) and the case of Warren v. Lewis, 273 N.C. 457, 160 S.E. 2d 305 (1988), and we believe that the distinctions drawn are appropriate to the present case as1 well. In Garner, it appeared that the vehicle containing the plaintiff was entering a street from forty to sixty feet wide, that the driver had an unobstructed view of the dominant highway for 200 to 300 feet, that the speed of the defendant\u2019s automobile was only fifty miles per hour, reduced to 30 or 35 miles per hour before the collision, and that it struck the emerging automobile in the side, before it had attained its proper lane of travel. In Warren, it appeared that the plaintiff had an unobstructed view in the direction from which the defendant\u2019s automobile was approaching for 400 to 600 feet, plus an additional 50 feet beyond the crest of a hill, had moved into the intersection for a distance of only sixteen feet and never saw the defendant\u2019s vehicle until the moment of collision. In both of these cases, the driver emerging from the private road or driveway into the public highway was held to have been contributorily negligent as a matter of law for failing to yield the right-of-way to oncoming traffic.\nWe do not think that these and other cases wherein the user of the private driveway or servient highway had the opportunity to observe approaching vehicles and failed to do so, and where the evidence did not tend to show that the respective defendants were so grossly in violation of the traffic laws, are applicable to the facts in the case before us, nor do we think that it was error for Judge Olive to allow the case to go to the jury and to deny defendant\u2019s motion for judgment notwithstanding the verdict.\nDefendant also contends that the court committed error in permitting the witness Donald Kyles (Donald) to give his opinion that the speed of the defendant\u2019s vehicle was \u201cabout seventy\u201d just prior to the collision. Although Donald testified that he did not have a chance to witness \u201cthe automobiles for any length of time,\u201d he did testify that he saw the Imes automobile as it went by the end of the driveway and turned and watched it collide with the Davis automobile. There was other evidence that from the end of the driveway to the point where the cars collided was two hundred feet or more. The court did not commit error in permitting Donald to give his opinion as to the speed of the defendant\u2019s vehicle. See Loomis v. Torrence, 259 N.C. 381, 130 S.E. 2d 540 (1963).\nDefendant assigns as error the following portions of the instructions given by the judge to the jury:\n\u201cNow, the law in this State, Statute Law, as enacted by the Legislature is, that a person entering a highway, a road, from a private driveway shall yield the right of way to traffic on the highway, and not proceed into the road until that person can see from what they can see would be in safety. On the other hand, the operator of an automobile on this highway, road, can presume up until he can see different that a person from a driveway will not come out of the driveway into the path of the oncoming automobile; but said operator must keep a lookout and see what he can see and when he is in a position to see, then he must proceed lawfully or stop . . . . \u201d\nIn the foregoing portion of the charge, the judge undertook to declare and explain the law with respect to the duties of the plaintiff and the defendant under G.S. 20-156 (a). We think that the jury must have been confused about how to consider the evidence and the meaning of the words \u201cand not proceed into the road until that person can see from what they can see would be in safety,\u201d and \u201ccan presume up until he can see different\u201d and \u201cbut said operator must keep a lookout and see what he can see and when he is in a position to see, then he must proceed lawfully or stop.\u201d Sometimes mistakes are made in the transcribing of the charge, but we are bound by the record. We hold that this portion of the charge was error in view of the principles set forth in Blackwell v. Butts, 278 N.C. 615, 180 S.E. 2d 835 (1971) ; Day v. Davis, 268 N.C. 643, 151 S.E. 2d 556 (1966) ; Equipment Co. v. Hertz Corp. and Contractors, Inc. v. Hertz Corp., supra; King v. Powell, 252 N.C. 506, 114 S.E. 2d 265 (1960) ; Gantt v. Hobson, supra; Blalock v. Hart, 239 N.C. 475, 80 S.E. 2d 373 (1954) and Garner v. Pittman, supra. See also, 60A C.J.S., Motor Vehicles, \u00a7 345.\nThe defendant also assigns as error the charge given as to the measure of damages on the third issue, which reads as follows:\n\u201cNow, the measure of damages on this issue if you come to it, ladies and gentlemen of the jury, is that where one is injured resulting in the death of the one injured by the actionable negligence of another, the personal representative of the deceased is entitled to recover as damages one compensation in a lump sum as would be a reasonable compensation for all loss approximately (sic) resulting from the defendant\u2019s wrongful and negligent act. These are understood to embrace indemnity for actual expenses incurred, car (sic), treatment, hospitalization, compensation for pain and suffering, and funeral expenses, incident to the injury and resulting death, as well as the mortuary value of the deceased to husband and children. (Reads Statute). It is for you, the jury, to say from all the circumstances what you find from the evidence and by its greater weight is a fair and reasonable sum which the defendant should pay the plaintiff by way of compensation for the alleged injury and death sustained. (Emphasis added.)\n* * *\nNow, ladies and gentlemen of the jury, the Court instructs you as a matter of law that if you come to this third issue if you are satisfied from the evidence and by its greater weight that the Plaintiff\u2019s decedent Mrs. Davis was injured, which injury resulted in her death, you would answer this issue in whatever amount you are satisfied from the evidence and by its greater weight according to the definition the Court has given you as to income and so forth. * * * \u201d\nThis charge is deficient in several respects, among which are: we are not told what statute the judge read. (This was apparently an omission of the court reporter.) No explanation appears as to what was meant by \u201cmortuary value of the deceased\u201d and the jury was therefore left to guess. The automobile driven by plaintiff\u2019s intestate was alleged to have been owned by her husband, and though there was no evidence as to its value, the jurors were instructed that the \u201ccar\u201d could be considered in some manner in determining the answer to the third issue. (The experienced trial judge who tried this case may have used the word \u201ccare,\u201d but the appellee stipulated that what was filed in this court was the record. On this record the word is \u201ccar.\u201d)\nDefendant has other assignments of error, some of which may have merit, but since they are not likely to recur on a new trial, we do not deem it necessary to discuss them.\nFor the reasons given, the verdict and judgment are vacated and a new trial is ordered.\nNew trial.\nJudges Morris and Parker concur.", "type": "majority", "author": "MALLARD, Chief Judge." } ], "attorneys": [ "Woodson, Hudson, Busby & Sayers by Donald D. Sayers for plaintiff appellee.", "Kluttz & Hamlin by Lewis P. Hamlin, Jr., for defendant appellant." ], "corrections": "", "head_matter": "GEORGE W. DAVIS, Administrator of the Estate of ALICE BURTON DAVIS v. WILLIAM L. IMES\nNo. 7219SC116\n(Filed 23 February 1972)\n1. Automobiles \u00a7 8\u2014 duty to maintain proper lookout\nIt is the duty of one proceeding along a public highway to maintain a proper lookout and to exercise due care to avoid colliding with vehicles entering the highway from private premises.\n2. Automobile \u00a7\u00a7 17, 30\u2014 violation of safety statutes \u2014 negligence\nThe violation of statutes relating to speed restrictions, driving on the right side of the road and meeting other vehicles constitutes negligence. G.S. 20-141; G.S. 20-146; G.S. 20-148.\n3. Automobiles \u00a7 18\u2014 entering highway from private driveway \u25a0\u2014 right-of-way\nA motorist entering a public highway from a private driveway has the duty to yield the right-of-way to all vehicles approaching on the public highway. G.S. 20-156(a).\n4. Automobiles \u00a7 74\u2014 entering highway from private driveway \u2014 contributory negligence\nPlaintiff\u2019s evidence did not disclose that his intestate was con-tributorily negligent as a matter of law in entering the highway from a private driveway, where it tended to show that plaintiff\u2019s intestate had completed her entry into the highway and had proceeded 25 to 30 feet in her right-hand lane of the highway when she was struck by defendant\u2019s oncoming vehicle which was across the center line and traveling at 80 mph.\n5. Automobiles \u00a7 46\u2014 opinion testimony as to speed \u2014 opportunity for observation\nThe trial court did not err in allowing a witness to give his opinion that the speed of defendant\u2019s vehicle was \u201cabout seventy\u201d prior to the collision, notwithstanding the witness testified he did not have a chance to observe \u201cthe automobiles for any length of time,\u201d where he testified that he observed defendant\u2019s automobile as it went by the end of a driveway and watched it collide with the other vehicle, and there was other evidence that the distance from the driveway to the point of collision was 200 feet or more.\n6. Automobiles \u00a7 90\u2014 instructions \u2014 entering highway from private driveway \u2014 duties of motorists\nThe trial court\u2019s instructions on the respective duties of a motorist entering a public highway from a private driveway and of a motorist traveling on the public highway were confusing and erroneous. G.S. 20-166(a).\n7. Death \u00a7 7\u2014 wrongful death \u2014 damages \u2014 instructions \u2014 \u201cmortuary value\u201d\nInstruction that the jury in a wrongful death action could consider \u201cthe mortuary value of deceased\u201d in determining damages, without further explanation as to the meaning of those words, was erroneous.\n8. Death \u00a7 7\u2014 wrongful death \u2014 damages \u2014 instructions \u2014 car owned by decedent\u2019s husband\nInstructions that the \u201cear\u201d could be considered on the issue of damages in a wrongful death action was erroneous where the automobile driven by plaintiff\u2019s intestate was alleged to have been owned by her husband.\nAppeal by defendant from Olive, Judge, July 1971 Civil Session of Superior Court held in Rowan County.\nCivil action instituted to recover damages for the wrongful death of the plaintiff\u2019s intestate resulting from an automobile accident on 20 May 1969. The plaintiff\u2019s intestate, Mrs. Davis, received fatal injuries when she attempted to enter a rural paved road from a private driveway and her automobile collided with an automobile driven by the defendant. This action, wherein it was alleged defendant was negligent, was instituted on 3 August 1970. Defendant, in his \u201cAnswer and Counterclaim\u201d filed 23 October 1970, denied negligence on his part and alleged the negligence of the plaintiff\u2019s intestate as a bar to any recovery. The case was tried by jury on 12 and 13 July 1971 and resulted in the following verdict and judgment for the plaintiff:\n\u201cThis cause coining on to be heard and being heard before His Honor, Hubert E. Olive, and a jury, at the July 12, 1971 Session of the Superior Court for Rowan County, North Carolina, and the jury having answered the issues submitted to it as follows:\n1. Was the death of the plaintiff\u2019s intestate, Alice Burton Davis, caused by the negligence of the defendant as alleged in the complaint?\nAnswer: Yes\n2. If so, did the plaintiff\u2019s intestate by her own negligence contribute to the cause of her death as alleged in the answer?\nAnswer: No\n3. What amount, if any, is the plaintiff entitled to recover?\nAnswer: $20,000.00\n4. Was the defendant injured by the negligence of plaintiff\u2019s intestate as alleged in the defendant\u2019s counterclaim?\nAnswer: _\n5. What amount, if any, is the defendant entitled to recover?\nAnswer: _\nIt Is Therefore, Ordered, Adjudged and Decreed that the plaintiff have and recover from the defendant the sum of Twenty Thousand ($20,000.00) Dollars, together with the costs of this action to be taxed against the defendant.\nThis the 13th day of July, 1971.\n/s/ Hubert E. Olive\nJudge Presiding\u201d\nDefendant\u2019s motions for directed verdict, judgment notwithstanding the verdict and for a new trial were denied, and from the entry of the judgment, defendant appealed to the Court of Appeals.\nWoodson, Hudson, Busby & Sayers by Donald D. Sayers for plaintiff appellee.\nKluttz & Hamlin by Lewis P. Hamlin, Jr., for defendant appellant." }, "file_name": "0521-01", "first_page_order": 545, "last_page_order": 555 }