{ "id": 8527884, "name": "BEASLEY PERRY, JR. v. LARRY WAYNE AYCOCK and JOHN W. FISHER", "name_abbreviation": "Perry v. Aycock", "decision_date": "1984-06-05", "docket_number": "No. 837SC615", "first_page": "705", "last_page": "709", "citations": [ { "type": "official", "cite": "68 N.C. App. 705" } ], "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": "138 S.E. 2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "262 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569608 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/262/0550-01" ] }, { "cite": "75 S.E. 2d 730", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "237 N.C. 686", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617856 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/237/0686-01" ] }, { "cite": "233 S.E. 2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 466", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570371, 8570288, 8570257, 8570323, 8570203 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0466-05", "/nc/292/0466-03", "/nc/292/0466-02", "/nc/292/0466-04", "/nc/292/0466-01" ] }, { "cite": "232 S.E. 2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "32 N.C. App. 370", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550655 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/32/0370-01" ] }, { "cite": "157 S.E. 2d 92", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565374 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0550-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20449", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1983, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "247 S.E. 2d 287", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "38 N.C. App. 50", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551832 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/38/0050-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-4.01", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1983, "pin_cites": [ { "page": "(49)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20454", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1983, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "222 S.E. 2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569619 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0343-01" ] }, { "cite": "251 S.E. 2d 419", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 467", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567655 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0467-01" ] }, { "cite": "293 S.E. 2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571111 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0435-01" ] }, { "cite": "225 S.E. 2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560682 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0118-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-277", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1983, "opinion_index": 0 } ], "analysis": { "cardinality": 529, "char_count": 9717, "ocr_confidence": 0.817, "pagerank": { "raw": 1.2457986089129568e-07, "percentile": 0.608971604135994 }, "sha256": "4c83ba04442198f1aa10abb402333804ba6529415a0cef9b811e0cc7c0a369aa", "simhash": "1:1b6020510ca31454", "word_count": 1575 }, "last_updated": "2023-07-14T17:24:21.303361+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WEBB and EAGLES concur.." ], "parties": [ "BEASLEY PERRY, JR. v. LARRY WAYNE AYCOCK and JOHN W. FISHER" ], "opinions": [ { "text": "BECTON, Judge.\nPlaintiff appeals from summary judgment for defendants in a \u201cpass and turn\u201d automobile negligence case. We hold that summary judgment was improperly granted.\nI\nThis appeal arises from the following undisputed events. Plaintiff, Beasley Perry, Jr., was following a line of vehicles on a rural road. At the head of the line was a slow-moving farm tractor operated by defendant, Larry Wayne Aycock, followed by a pickup truck operated by Stuart Strickland. Aycock and Strickland were employees of defendant John W. Fisher. The tractor and pickup both had emergency flashers on. As Aycock approached a farm driveway leading off the road to the left, Perry attempted to pass the line of vehicles. At the same time, Aycock attempted a left turn. A collision resulted, causing personal injury and other damages to Perry. Perry later instituted this action for damages. Defendants answered, denying negligence on their part and alleging contributory negligence on Perry\u2019s part, and counterclaiming for damages to the tractor. Before trial commenced, defendants moved for summary judgment as to Perry\u2019s claim, based on the answers to interrogatories and the depositions. Plaintiff presented no evidence. From an order granting defendants\u2019 motion, plaintiff appeals.\nII\nWe address as a preliminary matter the appealability of the order. Defendants\u2019 Counterclaim for damage to the tractor remains for adjudication, and the order granting summary judgment does not contain a certification that there is \u201cno just reason for delay.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b) (1983). Plaintiffs appeal is therefore premature unless the order affected a substantial right claimed by the appellant, and will work an injury to him if not corrected before an appeal from the final judgment. N.C. Gen. Stat. \u00a7 1-277 (1983); N.C. Gen. Stat. \u00a7 7A-27(d) (1981); Oestreicher v. American Nat\u2019l Stores, Inc., 290 N.C. 118, 225 S.E. 2d 797 (1976).\nIn a trial limited to defendant\u2019s Counterclaim, the jury could find that Perry was negligent and that defendants were not con-tributorily negligent, and thus allow defendants their requested relief. Then, if the summary judgment on Perry\u2019s claim were reversed on appeal, a second jury could find that Perry was not con-tributorily negligent and that defendants were negligent. A distinct possibility of inconsistent verdicts in separate trials arises, and the order allowing summary judgment therefore affects a substantial right, the denial of which will work an injury to the appellant if not corrected before an appeal from a final judgment. See Bemick v. Jurden, 306 N.C. 435, 293 S.E. 2d 405 (1982). We hold that this appeal is properly before this Court.\nIII\nWhen a defendant moves for summary judgment in a negligence action and presents a forecast of evidence sufficient to entitle him to a directed verdict if the evidence were introduced at trial, the plaintiff must then present a forecast of evidence which, if introduced at trial, would be sufficient to avoid a directed verdict. If the plaintiff does not do so, summary judgment must be granted for the defendant. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E. 2d 419 (1979). However, mere failure to respond with opposing affidavits or depositions does not automatically mean that summary judgment is appropriate. The moving party must still succeed on the strength of its evidence, and when that evidence contains material contradictions or leaves questions of credibility unanswered, the movant has failed to satisfy its burden. N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (1983); Kidd v. Early, 289 N.C. 343, 222 S.E. 2d 392 (1976).\nIV\nAs noted above, Perry did not submit any affidavits or depositions in opposition to defendants\u2019 motion. Defendants submitted evidence that although the pickup truck driver signaled a left turn, the tractor driver did not signal a left turn. There was other evidence that the tractor driver, Aycock, did give a hand signal, but it came from a witness who admitted that he did not pay great attention and whose answers to other questions were vague or inconsistent. Defendants\u2019 own evidence contained contradictions and unanswered questions of credibility and thus did not conclusively establish that Aycock signaled his turn.\nAlthough failure to do so does not constitute negligence per se, the law requires the driver \u201cof any vehicle\u201d to give a \u201cplainly visible\u201d signal to the operators of other vehicles who may be affected before beginning a turn. N.C. Gen. Stat. \u00a7 20454(a) (1983). A farm tractor is a vehicle. N.C. Gen. Stat. \u00a7 20-4.01(49) (1983). Since defendants\u2019 evidence permitted a finding that Aycock did not signal, summary judgment based on lack of negligence by defendants would only be appropriate if the evidence established conclusively that Aycock had no duty to signal under the circumstances.\nDefendants argue that the tractor and the pickup operated as a \u201cunit\u201d and that the pickup\u2019s signals should be considered as those of the tractor. They cite no authority for this novel proposition, however; it clearly constitutes an adaptation of the statutory standard of care to the circumstances of the case. Absent any more conclusive evidence that Aycock had no duty to signal, and in light of the undisputed fact that plaintiff did safely pass the pickup truck, we conclude that defendants\u2019 evidence did not suffice to justify summary judgment for defendants on the issue of Aycock\u2019s negligence.\nV\nThe same principles of law discussed above apply to summary judgment on issues of plaintiffs contributory negligence. Ballenger v. Crowell, 38 N.C. App. 50, 247 S.E. 2d 287 (1978). Perry admitted that he did not sound his horn when he began to pass. There is no statutory requirement to do so. See N.C. Gen. Stat. \u00a7 20449(b) (1983); compare G.S. \u00a7 20449(b) (1965). Perry\u2019s failure to sound his horn thus did not constitute negligence per se; rather, he was subject to the common law duty to use reasonable care. Lowe v. Futtrell, 271 N.C. 550, 157 S.E. 2d 92 (1967). Absent a statutory requirement, a motorist is only required to sound his horn when reasonably necessary to give warning. Lowe; Bell v. Wallace, 32 N.C. App. 370, 232 S.E. 2d 305, disc. rev. denied, 292 N.C. 466, 233 S.E. 2d 921 (1977).\nDefendants argue that Lyerly v. Griffin, 237 N.C. 686, 75 S.E. 2d 730 (1953) controls. We disagree. In Lyerly, our Supreme Court affirmed a nonsuit based on plaintiffs contributory negligence, because plaintiff did not sound his horn in passing, a statutory violation. Although the Lyerly Court did not explicitly label the statutory violation negligence per se, that clearly is its import, as our Supreme Court itself later recognized in Cowan v. Marrows Transfer, Inc., 262 N.C. 550, 138 S.E. 2d 228 (1964). In response to the harsh rule enunciated in Lyerly, the relevant statute, G.S. \u00a7 20-149(b) (1953), has been amended twice to prevent any negligence per se interpretation. Indeed, the current version of the statute, G.S. \u00a7 20449(b) (1983), does not even impose a duty to sound one\u2019s horn when passing. Therefore, Lyerly no longer applies. Perry\u2019s failure to sound his horn did not constitute negligence per se, and, therefore, did not, by itself, justify summary judgment for defendants.\nFurther, the various estimates of Perry\u2019s speed indicate that it fell far short of speed which, in itself, would qualify as reckless behavior. Significantly, Perry did safely pass the pickup, which a jury could find was the only vehicle he could have known was turning left. This evidence, taken together, does not compel a ruling that plaintiff did not exercise due caution under the circumstances. We therefore conclude that the evidence before the trial court established an issue for the jury, rather than summary judgment for defendants on the issue of plaintiffs contributory negligence.\nVI\nIn short, summary judgment was improper on these facts. Neither defendants\u2019 lack of negligence nor Perry\u2019s contributory negligence was sufficiently established by the forecast of evidence. Therefore, the order appealed from must be\nReversed.\nJudges WEBB and EAGLES concur..", "type": "majority", "author": "BECTON, Judge." } ], "attorneys": [ "Evans & Lawrence, by Robert A. Evans, for plaintiff appellant.", "Evans & Rountree, by Charles S. Rountree, for defendant ap-pellee." ], "corrections": "", "head_matter": "BEASLEY PERRY, JR. v. LARRY WAYNE AYCOCK and JOHN W. FISHER\nNo. 837SC615\n(Filed 5 June 1984)\n1. Appeal and Error \u00a7 6.8\u2014 order granting summary judgment \u2014 right of immediate appeal\nAn order granting summary judgment for defendants in a \u201cpass and turn\u201d automobile negligence case affected a substantial right of plaintiff and was immediately appealable where defendants\u2019 counterclaim for damages to their vehicle remains for adjudication, and there is a possibility of inconsistent verdicts in separate trials.\n2. Automobiles and Other Vehicles \u00a7 58.2\u2014 failure to give turn signal \u2014 genuine issue as to negligence\nIn an action arising out of a collision which occurred when plaintiff attempted to pass a farm tractor which made a left turn, the evidence on motion for summary judgment presented an issue of material fact as to whether the driver of the tractor was negligent in failing to give a left turn signal, although the evidence showed that the driver of a pickup truck traveling immediately behind the farm tractor gave a left turn signal.\n3. Automobiles and Other Vehicles \u00a7\u00a7 16.3, 77.1\u2014 failure to sound horn before passing \u2014 no contributory negligence per se\nPlaintiffs failure to sound his horn before he attempted to pass defendant\u2019s farm tractor did not constitute contributory negligence per se. G.S. 20449(b).\nAPPEAL by plaintiff from Peel, Judge. Judgment entered 1 March 1983 in Superior Court, NASH County. Heard in the Court of Appeals 6 April 1984.\nEvans & Lawrence, by Robert A. Evans, for plaintiff appellant.\nEvans & Rountree, by Charles S. Rountree, for defendant ap-pellee." }, "file_name": "0705-01", "first_page_order": 737, "last_page_order": 741 }