{ "id": 8614439, "name": "JAMES O. TAYLOR v. ALFRED JUNIUS BRAKE and SOLOMAN ANDERSON", "name_abbreviation": "Taylor v. Brake", "decision_date": "1957-02-27", "docket_number": "", "first_page": "553", "last_page": "558", "citations": [ { "type": "official", "cite": "245 N.C. 553" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "68 S.E. 2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "234 N.C. 627", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625256 ], "opinion_index": 0, "case_paths": [ "/nc/234/0627-01" ] }, { "cite": "23 S.E. 2d 330", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630446 ], "opinion_index": 0, "case_paths": [ "/nc/222/0375-01" ] }, { "cite": "64 S.E. 2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608425 ], "opinion_index": 0, "case_paths": [ "/nc/233/0377-01" ] }, { "cite": "61 S.E. 2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "232 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8605607 ], "opinion_index": 0, "case_paths": [ "/nc/232/0457-01" ] }, { "cite": "72 S.E. 2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 72", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622355 ], "opinion_index": 0, "case_paths": [ "/nc/236/0072-01" ] }, { "cite": "75 S.E. 2d 147", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "237 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611585 ], "opinion_index": 0, "case_paths": [ "/nc/237/0377-01" ] }, { "cite": "39 S.E. 2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "226 N.C. 514", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621734 ], "opinion_index": 0, "case_paths": [ "/nc/226/0514-01" ] }, { "cite": "62 S.E. 2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597730, 8597860 ], "opinion_index": 0, "case_paths": [ "/nc/233/0061-01", "/nc/233/0061-02" ] }, { "cite": "62 S.E. 2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "232 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613587 ], "opinion_index": 0, "case_paths": [ "/nc/232/0699-01" ] }, { "cite": "91 S.E. 2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626554 ], "opinion_index": 0, "case_paths": [ "/nc/243/0632-01" ] }, { "cite": "78 S.E. 2d 213", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "238 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610819 ], "opinion_index": 0, "case_paths": [ "/nc/238/0427-01" ] }, { "cite": "92 S.E. 2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219519 ], "opinion_index": 0, "case_paths": [ "/nc/244/0001-01" ] } ], "analysis": { "cardinality": 572, "char_count": 14786, "ocr_confidence": 0.545, "pagerank": { "raw": 2.2978451928612076e-07, "percentile": 0.7870310199552175 }, "sha256": "3154fbdba727cfab9f044cdd4de1bc72a9eae6cd71b50bba6a5bfd8d14b044c4", "simhash": "1:9300478d000e4359", "word_count": 2539 }, "last_updated": "2023-07-14T14:55:29.608424+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Bobbitt, J., dissents." ], "parties": [ "JAMES O. TAYLOR v. ALFRED JUNIUS BRAKE and SOLOMAN ANDERSON." ], "opinions": [ { "text": "PARKER, J.\nFor present purposes, the plaintiff\u2019s evidence is to be taken as true, and he is entitled to every reasonable intendment and legitimate inference fairly deducible therefrom. Scarborough v. Veneer Co., 244 N.C. 1, 92 S.E. 2d 435; Polonsky v. Ins. Asso., 238 N.C. 427, 78 S.E. 2d 213. Defendants\u2019 evidence in direct conflict with that of plaintiff is not to be considered by the court on a motion for a compulsory nonsuit. Lawrence v. Bethea, 243 N.C. 632, 91 S.E. 2d 594; Brafford v. Cook, 232 N.C. 699, 62 S.E. 2d 327.\nAt the intersection of Coleman Avenue and Holly Street there were no stop signs and no right-of-way signs, and there is no evidence that any stop or caution lights were there. As they approached the intersection, plaintiff\u2019s Mercury was approaching from the defendant\u2019s left, and the defendant Brake was driving the Ford and approaching from plaintiff\u2019s right.\n\u201cWhen two automobiles approach or enter an intersection ... at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right,\u201d with certain specified exceptions, which are not relevant to the facts of the instant case. G.S. 20-155 (a). \u201cTwo motor vehicles approach or enter an intersection at approximately the same time within the purview of these rules whenever their respective distances from the intersection, their relative speeds, and the other attendant circumstances show that the driver of the vehicle on the left should reasonably apprehend that there is danger of collision unless he delays his progress until the vehicle on the right has passed. (Many cases are cited in support of the statement.) A corollary of this proposition may be stated conversely in these words: When the driver of a motor vehicle on the left comes to an intersection and finds no one approaching it on the other street within such distance as reasonably to indicate danger of collision, he is under no obligation to stop or wait, but may proceed to use such intersection as a matter of right.\u201d S. v. Hill, 233 N.C. 61, 62 S.E. 2d 532. This Court has also said in Kennedy v. Smith, 226 N.C. 514, 39 S.E. 2d 380: \u201cHowever, this statutory rule,is based upon the assumption that the two vehicles approach or enter the intersection at approximately the same time, and does not apply if the driver on the right, at the time he approaches the intersection and before reaching it, in the exercise of reasonable prudence ascertains that the vehicle on his left has already entered the intersection.\u201d\nG.S. 20-155 (b) states \u201cthe driver of a vehicle approaching but not having entered an intersection . . ., shall yield the right-of-way to a vehicle already within such intersection.\u201d Bennett v. Stephenson, 237 N.C. 377, 75 S.E. 2d 147.\nPlaintiff contends that the case should have been submitted to the jury on the theory that he was already within the intersection, when the defendant Brake approached it. This Court said in Cox v. Freight Lines and Matthews v. Freight Lines, 236 N.C. 72, 72 S.E. 2d 25: \u201cThe court cannot submit a case to the jury on a particular theory unless such theory is supported by both the pleadings and the evidence.\u201d Plaintiff has not alleged any where in his complaint that he was already within the intersection, when the defendant Brake approached the intersection but had not entered it, nor has he testified that he entered the intersection first. It is true that plaintiff alleged the defendants were negligent by \u201cnegligently, recklessly and carelessly failing to yield the right-of-way to this plaintiff\u2019s automobile as by law required.\u201d \u201cTo characterize an act or course of conduct as negligent without more is insufficient. As stated in McIntosh on Prac. and Proc., sec. 388, \u2018In negligence cases, a general allegation of negligence is insufficient and the facts constituting negligence must be given and that it was the cause of plaintiff\u2019s injury.\u2019 \u201d Fleming v. Light Co., 232 N.C. 457, 61 S.E. 2d 364. This allegation is insufficient to support plaintiff\u2019s theory that plaintiff had the right-of-way by virtue of G.S. 20-155 (b).\nEven if plaintiff had alleged facts to show that he had the right-of-way by virtue of G.S. 20-155 (b), he has no evidence to support such an allegation. He approached the intersection about 20 miles an hour, took his foot off the accelerator, put it on the brake and proceeded to slow down. Brake approaching the intersection, at about 25 miles an hour, according to plaintiff\u2019s evidence, had the right to assume that plaintiff approaching from his left and slowing down would yield the right-of-way to the vehicle on the right driven by him, and stop or slow down sufficiently to permit him to pass in safety. Bennett v. Stephenson, supra; Chaffin v. Brame, 233 N.C. 377, 64 S.E. 2d 276. About 8 to 10 feet, or maybe a little more, from the intersection plaintiff looked to the right and left on Coleman Avenue, along which street he could see 100 to 125 feet, and not seeing any traffic on the avenue \u2014 he did not look again \u2014 he took his foot off the brake, put it on the accelerator, and drove into the intersection. He did not see defendants\u2019 car, until it hit him. \u25a0 We are of opinion that plaintiff\u2019s evidence is not susceptible of the reasonable inference that he was within the intersection first, and we are supported in our opinion by the fact plaintiff did not see fit to allege it.\nIt was plaintiff\u2019s duty \u201cnot merely to look, but to keep an outlook in the direction of travel; and he is held to the duty of seeing what he ought to have seen.\u201d Wall v. Bain, 222 N.C. 375, 23 S.E. 2d 330.\nIf plaintiff had seen the Ford approaching the intersection on his right at 25 miles an hour, as it was his duty to see it, he should have reasonably apprehended that there was danger of a collision, unless he delayed his progress until defendants\u2019 Ford on the right had passed through the intersection. The evidence, considered in the light most favorable to plaintiff, presents a case when two automobiles approach or enter an intersection at approximately the same time, as the applicable statute has been construed by this Court, particularly in S. v. Hill, supra, and it was the duty of plaintiff, the driver of the vehicle on the left, to yield the right-of-way to the defendants\u2019 vehicle on the right.\nIn order to make out a case for the jury plaintiff is required to have a sufficient pleading and to present probative facts from which negligence and causal relation can reasonably be inferred. In a consideration of the evidence the essential requirement is that mere speculation be not allowed to do duty for probative facts. A consideration of all the evidence favorable to plaintiff leads us to the conclusion that it does not make out a case of negligence against the defendants sufficient to carry the case to the jury.\nDonlop v. Snyder, 234 N.C. 627, 68 S.E. 2d 316, relied on by plaintiff, is distinguishable. In that case plaintiff testified defendant told him at the hospital, \u201che saw me in the intersection but was coming so fast he could not stop.\u201d Kennedy v. Smith, supra, relied on by plaintiff, is also distinguishable.\nThe judgment of nonsuit below is\nAffirmed.\nBobbitt, J., dissents.", "type": "majority", "author": "PARKER, J." } ], "attorneys": [ "Robert D. Wheeler and Owens & Langley for Plaintiff, Appellant.", "James & Speight for Defendants, Appellees." ], "corrections": "", "head_matter": "JAMES O. TAYLOR v. ALFRED JUNIUS BRAKE and SOLOMAN ANDERSON.\n(Filed 27 February, 1957.)\n1. Trial \u00a7 22a\u2014\nOn motion to nonsuit, plaintiff\u2019s evidence is to be taken as true, and he is entitled to every reasonable intendment and legitimate inference fairly deducible therefrom.\n2. Trial \u00a7 22b\u2014\nDefendants\u2019 evidence in direct conflict with that of plaintiff is not to be considered on motion for compulsory nonsuit.\n3. Automobiles \u00a7 17\u2014\nWhere at about the same time two vehicles approach an intersection which has no stop signs or traffic control signals, the vehicle on the right has the right of way, G.S. 20-155(a), and they approach the intersection at approximately the same time within the purview of this rule when their respective distances from the intersection and relative speeds, and other attendant circumstances, show that the driver of the vehicle on the left should reasonably apprehend that there is danger of collision unless he delays his progress until the vehicle on the right has passed.\n4. Same\u2014\nWhere a vehicle approaches an intersection and no other vehicle is then approaching within such distance as reasonably to indicate danger of collision, the driver is under no obligation to stop or wait in tbe absence of stop signs or traffic control signals, but may proceed to use tbe intersection as a matter of right, and if be thus first enters tbe intersection, be has tbe right of way over a vehicle approaching the intersection from bis right. G.S. 20-155 (b).\n5. Negligence \u00a7 16\u2014\nMere allegation that defendants\u2019 conduct was negligent, without alleging tbe facts constituting tbe alleged negligence, is insufficient.\n6. Automobiles \u00a7 41g \u2014 Plaintiff\u2019s evidence held insufficient to show negligence on part of defendant in entering intersection.\nPlaintiff\u2019s evidence tended to show that be approached an intersection, slowed bis vehicle, looked, and seeing no other vehicle approaching, drove into tbe intersection, that be did not again look until be beard the squeal of tires, and that the right rear of bis vehicle was struck by the car driven by one defendant, which approached the intersection from plaintiff\u2019s right at a speed of about 25 miles per hour. There was no allegation by plaintiff that he was first in the intersection. Meld: Plaintiff\u2019s evidence does not show that he was first in the intersection, and therefore defendant driver had the right of way and the right to assume that plaintiff, approaching from his left and slowing down, would yield him the right of way, and nonsuit was correctly entered.\n7. Automobiles \u00a7 7\u2014 '\nIt is the duty of a motorist not merely -to look, but to keep a proper lookout, and he is held to the duty of seeing what he ought to have seen.\nBobbitt, J., dissents.\nAppeal by plaintiff from Morris, J., September Term 1956 of Pitt.\nCivil action for personal injuries and damage to an automobile arising out of a collision between two automobiles at a street intersection within the corporate limits of the city of Rocky Mount.\nPlaintiff\u2019s evidence tends to show these facts:\nColeman Avenue, which runs north and south, and Holly Street, which runs east and west, intersect and cross each other within the corporate limits of the city of Rocky Mount. Where these streets intersect, Coleman Avenue is about 39 feet wide, and Holly Street about 36 feet wide. Coleman Avenue is paved to the intersection going north, and is a dirt street north of it. Holly Street is a dirt street. There are no stop signs and no right-of-way signs at the intersection, and no evidence that any stop or caution lights were there.\nAbout 10:30 a.m. on 29 November 1955, a clear, cold day, an eastbound Mercury Automobile, owned and operated by the plaintiff, which approached and entered the intersection on Holly Street, and a northbound Ford Automobile, owned by the defendant Soloman Anderson and operated for him by his agent, the defendant Alfred Junius Brake, which approached and entered the intersection on Coleman Avenue, collided in the intersection causing personal injury to the plaintiff and damage to his Mercury, and personal injury to the defendant Brake, and damage to the defendant Anderson\u2019s Ford. As they approached the intersection, plaintiff\u2019s Mercury was approaching from the left of the Ford driven by the defendant Brake, and the defendant Brake was approaching in the Ford from plaintiff\u2019s right.\nPlaintiff testified that he was travelling east on Holly Street about 20 miles an hour on the right hand side when he saw the intersection of Holly Street and Coleman Avenue, and, as he approached the intersection, he took his foot off the accelerator, put it on the brake, and proceeded to slow down. About 8 to 10 feet, or maybe a little more, from the intersection he looked to the right and left on Coleman Avenue, along which street he could see 100 to 125 feet, and not seeing any traffic on the street \u2014 he did not look again \u2014 he took his foot off the brake, put it on the accelerator, and drove into the intersection at a speed of about 15 miles an hour. When the front end of his Mercury was already across the intersection, he heard tires squeal. He started to turn his head to the right, and his Mercury was hit by a Ford driven by the defendant Brake. He said on cross-examination his whole car had crossed the center of the street when hit. The right back end of the Mercury over the rear wheel was struck by the front of the Ford. The collision drove the Mercury almost all the way across the street, turning as it went. The door flew open, and he could not control the car.\nThe Mercury went 105 feet in the direction it was travelling on Holly Street from debris in the intersection before it stopped. The Ford went about nine feet from the debris before it stopped.\nA police officer of Rocky Mount, who went to the scene of the collision, testified as a witness for plaintiff, and said, \u201che (plaintiff) had brake pedal but it wasn\u2019t more than half-way down there.\u201d This officer also testified that the plaintiff and the defendant Brake at the scene of the collision talked to him in each other\u2019s presence and hearing, that the plaintiff said he did not see the Ford car, and defendant Brake said he was approaching the intersection about 25 miles an hour, that the Mercury was about 20 feet from the intersection when he saw it, that he was about 40 feet from the intersection at that time, that he thought it was going to stop but when he saw it was not going to stop and yield the right-of-way, he put on his brakes and was unable to stop.\nAt this intersection each driver could have seen the other automobile 50 to 75 feet from the intersection.\nDefendants\u2019 evidence was to this effect: The first time Brake looked, he didn\u2019t see the Mercury coming because of a store on the right. Brake was travelling 20 to 25 miles an hour. He looked again to the left, and there the Mercury was, he entered the intersection, and plaintiff entered it. As Brake approached the intersection, 20 or 30 feet away, he saw plaintiff, who was slowing up to stop. He thought plaintiff was going to stop. He entered the intersection, and when his front wheels were two feet in the intersection, plaintiff speeded up, entered the intersection and came across his front wheels. He applied his brake, but could not avoid colliding with plaintiff\u2019s car.\nAt the close of all the evidence the court sustained the defendants\u2019 motion for judgment of nonsuit, and from the judgment entered, plaintiff appeals.\nRobert D. Wheeler and Owens & Langley for Plaintiff, Appellant.\nJames & Speight for Defendants, Appellees." }, "file_name": "0553-01", "first_page_order": 591, "last_page_order": 596 }