{ "id": 8621385, "name": "EMMA CARR, Administratrix of ELIJAH CARR, JR., v. MATTHEW LEE", "name_abbreviation": "Carr v. Lee", "decision_date": "1959-03-18", "docket_number": "", "first_page": "712", "last_page": "718", "citations": [ { "type": "official", "cite": "249 N.C. 712" } ], "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": "84 S.E. 2d 919", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607326 ], "opinion_index": 0, "case_paths": [ "/nc/241/0273-01" ] }, { "cite": "86 S.E. 2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 32", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608494 ], "opinion_index": 0, "case_paths": [ "/nc/242/0032-01" ] }, { "cite": "85 S.E. 2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611925 ], "opinion_index": 0, "case_paths": [ "/nc/241/0441-01" ] }, { "cite": "98 S.E. 2d 19", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625807 ], "opinion_index": 0, "case_paths": [ "/nc/246/0247-01" ] }, { "cite": "105 S.E. 2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "249 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611268 ], "opinion_index": 0, "case_paths": [ "/nc/249/0160-01" ] }, { "cite": "102 S.E. 2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "248 N.C. 38", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618778 ], "opinion_index": 0, "case_paths": [ "/nc/248/0038-01" ] }, { "cite": "80 S.E. 2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "239 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627410 ], "opinion_index": 0, "case_paths": [ "/nc/239/0487-01" ] }, { "cite": "90 S.E. 2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622234 ], "opinion_index": 0, "case_paths": [ "/nc/243/0153-01" ] }, { "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": "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": "103 S.E. 2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "248 N.C. 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624128 ], "opinion_index": 0, "case_paths": [ "/nc/248/0432-01" ] }, { "cite": "106 S.E. 2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "249 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612757 ], "opinion_index": 0, "case_paths": [ "/nc/249/0228-01" ] } ], "analysis": { "cardinality": 662, "char_count": 14787, "ocr_confidence": 0.421, "pagerank": { "raw": 3.1719475638076025e-07, "percentile": 0.8639708338208135 }, "sha256": "8f76274f4f79738f01796de0b303b23d64ef87d88f10aa6952a096acded3891e", "simhash": "1:63d59bf98a3ff272", "word_count": 2544 }, "last_updated": "2023-07-14T22:25:15.863799+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "EMMA CARR, Administratrix of ELIJAH CARR, JR., v. MATTHEW LEE." ], "opinions": [ { "text": "Moore, J.\nThe sole question for decision in this case is whether or not the 'oourt erred in granting the motion for judgment of involuntary nonsuit.\nThe plaintiff contends that the evidence offered by her made out a prima facie case \u00a1of actionable negligence.\nThe plaintiff is entitled to have the evidence considered in the light most favorable to her \u00a1and to have the benefit \u00a1of every reasonable inference to be drawn therefrom. Primm v. King, 249 N.C. 228, 106 S.E. 2d 223.\nThe plaintiff \u00a1asserts that the \u00a1actionable negligence of the defendant consisted of Iris failure to maintain a reasonable lookout, failure to keep his motor vehicle under \u00a1proper .control, and failure to apply brakes.\nThere is no evidence in the case to support, inferentially or otherwise, rthe view that the Buick driven by Marion Wright, Jr., entered the intersection first. The defendant\u2019s testimony, offered by the plaintiff, discloses that he reduced speed and was driving at less than 15 miles per hour and in second gear at the time of the collision; that the collision took place about the center of the intersection; and that the Buick came from his left. This evidence is uncontradicted. There were no traffic signs at the intersection. Plaintiff solemnly alleges that Miarion Wright, Jr., operated the Buick at an \u201cunlawful speed of 50 miles pier hour in a 35 mile zone . . . and permitted it to enter into said intersection ... .at such unlawful, dangerous and excessive rate of speed . . . and he failed properly to apply tire 'brakes . . . and slacken its speed ...\u201d The physical evidence tends to bear out the testimony of defendant and the said allegations of plaintiff, or at least is not inconsistent therewith. This is particularly true as regards the respective distances traveled by the vehicles before coming to rest and 'the damaged parts of the vehicles. Physical facts at the scene of a collision often speak louder than testimony of witnesses. S. v. Hancock, 248 N.C. 432, 103 S.E. 2d 491.\nThe conclusion is inescapable that the vehicles entered the intersection at approximately the same time, or .that the defendant\u2019s vehicle entered first. In either case the defendant had the right of way, that is, the right to proceed uninterruptedly in a lawful manner in the direction in which- he was moving in preference to another approaching from a different direction into his path. S. v. Hill, 233 N.C. 61, 62 S.E. 2d 532; G.S. 20-155 (a) (b). The defendant was under no duty to 'anticipate disobedience of law or negligence on the part of others, but in the absence of 'anything which put him on notice, or should have put him on notice, to the contrary, he was entitled to assume, and to act on the assumption, .that others would obey the law, exercise reasonable care and yield to him the right of way. Bennett v. Stephenson, 237 N.C. 377, 75 S.E. 2d 147.\nHowever, one who has the right of way at an intersection does not have the absolute right of way in the sense that he is not bound to use ordinary care in the exercise of his right. When he sees, or by the exercise of 'due care should see, that an approaching driver cannot or will not observe the traffic laws, he must use such care as an ordinarily prudent person would use under the same or similar circumstances to avoid collision and injury. His duty under such circumstances consists in keeping a reasonable lookout, keeping his vehicle under control, and taking reasonable precautions to avoid injury to persons and property. Primm v. King, supra; Caughron v. Walker, 243 N.C. 153, 90 S.E. 2d 305; Henderson v. Henderson, 239 N.C. 487, 80 S.E. 2d 383.\nIn the instant case the evidence discloses nothing which would have, if observed, reasonably put the defendant on notice of a possible collision in time for him to have taken measures to avoid it. See Lucas v. White, 248 N.C. 38, 102 S.E. 2d 387.\nIt is true that the driver of a motor vehicle is charged with the duty at .all times of keeping such a lookout as .an ordinarily prudent person would keep under the same or similar 'circumstances. Smith v. Kinston, 249 N.C. 160, 105 S.E. 2d 648. The duty is not only to look, but to see what ought to have been seen. Keener v. Beal, 246 N.C. 247, 98 S.E. 2d 19.\nThe defendant testified that he looked westwardly on Church Street, but did not at any time before the collision see the Buick approaching. He stated that he could have seen it if its lights had been burning. In any event, it is impossible to understand how the defendant could have reasonably avoided the collision under the circumstances of .this case even if he had seen the Buick approaching. He had the right to assume that a vehicle .approaching from his left would stop .and yield to him 'the right of way. Considering his position, the size of the intersection, the speed of the approaching vehicle, and the point at which he might have reasonably discovered that the Buick would not stop and yield the right of way, it would mot have been reasonably possible for him to avoid the collision even if he had .seen the approaching vehicle and realized the danger.\nAssuming that his failure to see the approaching vehicle was negligence, it could not under the circumstances have been a proximate cause of the collision. Marshburn v. Patterson, 241 N.C. 441, 85 S.E. 2d 683.\nAs for the contention that defendant did not apply brakes, the matter of applying brakes is part and parcel of proper control. And proper control is the twin brother of reasonable lookout. When the duty of reasonable lookout has been performed and avoidable danger has been discovered, the duty to control arises. We have already said in effect that under 'the circumstances in this case the defendant could not have reasonably discovered the peril in time to control his vehicle in such manner .as to avoid the collision.\nSimilar situations existed in Brady v. Beverage Co., 242 N.C. 32, 86 S.E. 2d 901, and Loving v. Whitton, 241 N.C. 273, 84 S.E. 2d 919. The principles applied in those oases have application here.\nWe point out that the defendant denied the allegation of plaintiff that she was the duly qualified and acting administratrix of the de-oeased, Elijah Carr, Jr. No evidence was offered by plaintiff that she was such administratrix and had right to maintain the action. G.S. 28-173. The want of such evidence alone is sufficient to sustain the nonsuit even if there were no other ground for so doing.\nAffirmed.", "type": "majority", "author": "Moore, J." } ], "attorneys": [ "Everett, Everett & Everett and C. J. Gates for plaintiff, appellant.", "Elkins & Colder and Royce S. McClelland for defendant, appellee." ], "corrections": "", "head_matter": "EMMA CARR, Administratrix of ELIJAH CARR, JR., v. MATTHEW LEE.\n(Filed 18 March, 1959.)\n1. Trial \u00a7 22a\u2014\nOn motion to nonsuit, plaintiff is entitled to have the evidence considered in the light most favorable to her and to have the benefit of every reasonable inference to be drawn therefrom.\n2. Automobiles \u00a7 39\u2014\nPhysical facts at the scene of a collision may speak louder than the testimony of witnesses.\n3. Automobiles \u00a7 17\u2014\nWhere two vehicles approach an intersection at approximately the same time, or .the vehicle on the right first enters the intersection, the vehicle on the right has the right of way. G.S. 20-155 (a) (b).\n4. Same\u2014\nThe right of way at an, intersection means the right of a driver to continue his direction of travel in a lawful manner in .preference to another vehicle approaching the intersection from, a different direction.\n5. Same\u2014\nA driver having the night of way at an .intersection is under no duty to anticipate disobedience of law or negligence on the part of others, but in the absence of anything which puts him on notice, or should put him -on notice to the contrary, he is entitled to assume, and to act ,on the assumption, that others will obey the law, exercise reasonable \u2022care and yield to him the right of way.\n6. Same\u2014\nA driver who has the right of way at an intersection does not have the absolute right of way in the sense that he is not bound to use ordinary care in the exercise of his right, and he is nevertheless required ,to keep a reasonable lookout, keep his vehicle under control, and take reasonable precautions to avoid injury to persons and property, or when he sees, or by the exercise of due care should see, that am approaching driver cannot or will not observe the traffic laws, he must use such care as an ordinarily prudent person would use under the same or similar circumstances to avoid collision and injury.\n7. Automobiles \u00a7 7\u2014\nThe driver of a motor vehicle is charged with the duty at all times of keeping such a lookout as an ordinarily prudent person would keep under the same or similar circumstances, and he is required not only to look but to see what ought to have been seen.\n8. Automobiles \u00a7 41g\u2014 Evidence held insufficient to show negligence of driver of cai* entering intersection from the right as the proximate cause of collision at the intersection.\nPlaintiff\u2019s evidence was to the effect 'that her intestate was riding in a car owned and driven by defendant, that defendant entered an intersection at a rate of some 15 miles per hour, that defendant\u2019s car was struck about the center of 'the intersection by a oar entering the intersection from his left, that defendant\u2019s car came to rest near the intersection with damage to its left front, and that .the other car came to rest against a building some 104 feet east of the intersection, with damage on its front and right front. Plaintiff also introduced statements of defendant on adverse examination that he had slowed down and looked and did no,t see any car approaching, and that a person could see a car approaching, with its headlights burning, from the direction that the other oar actually did approach, 25 to 30 feet when within 25 feet of the intersection. Held: Nonsuit was correctly entered, since, even assuming that defendant\u2019s failure to see the approaching vehicle was \u25a0negligent, the testimony and the physical facts at the scene adduce the sole conclusion that defendant, at the point at which he might have reasonably discovered that the other car would not stop and yield him the right of way, did not have time to apply his brakes and control \u25a0his vehicle in such manner as to avoid the collision.\n9. Death \u00a7 3\u2014\nNonsuit is properly entered in an action for wrongful death when plaintiff\u2019s allegation that she was duly qualified and acting administra-trix of the deceased is denied in the answer and plaintiff offers no evidence in support of her allegation. G.S. 28-173.\nAppeal by plaintiff from Bone, J., October 1958 Oivil Term of New HaNOVer.\nPlaintiff seeks damages for the alleged wrongful deaith of her intestate from injuries received in a collision between .two motor vehicles &b an intersection of streets in the city of Wilmington, on 19 January, 1957.\nThe action was instituted 10 March, 1958, against defendants Matthew Lee, Marion Wright, Jr., and Mattie Wright. Summons was not served on Marion Wright, Jr., and Mattie Wright, and there was \u25a0a judgment of voluntary nonsuit as to them prior to the trial.\nPlaintiff\u2019s evidence revealed:\nPlaintiff\u2019s intestate, Elijah Carr, Jr., wtas a guest passenger in a Dodge pickup owned by Matthew Lee and being driven by him northwardly along Seventh Street. (Matthew Lee is hereinafter referred to' as the defend\u00edamt.) The Dodge pickup collided with a Ruick sedan owned by Miattie Wright and being driven eastwardly on Church Street by Marion Wright, Jr. The collision occurred about 6:15 p.m. Seventh Street runs north and south, is 36 feet wide south of Church Street and 27 feet wide north of Church Street. Church Street -is 27 feet wide and is straight throughout its length. These streets intersect at right angles and Church Street slopes downwardly from the intersection looking west. A street light was burning at the intersection and another 150 feet west on Church Street. The speed limit 'at the intersection is 35 miles per hour. The weather was clear \u25a0and the street dry. There were no traffic control signs or devices at the intersection. There is a one-story dwelling at the southwest corner, 35 feet west of Seventh Street and 27feet south of Church Street. A tree, which had shed its leaves, is also at the southwest corner.\nThe collision took place about the center of the intersection. There were skid mark\u00ae \u201cas if a oar had skidded sideways\u201d from the center\u2019 of the intersection toward, but not extending .to, the curb at the northeast \u00a9orner. The Dodge pickup came to rest, facing east, at, but not across, the curb ion Church Street near the northeast comer \u00a1of the intersection and near a tree. Its right front headlight was burning. The Buick came to rest off .the street against a church 104 feet east of the intersection. The vehicles were extensively damaged, the Dodge pickup ion the left front, the Buick on the front and right front. The headlights of the Buick were \u201ctorn completely out.\u201d The plaintiff\u2019s intestate was found hanging from the Dodge pickup and was pronounced dead upon arrival at the hospital.\nThe plaintiff offered in evidence the testimony of the defendant Lee taken upon prior adverse examination, as follows: The deceased and defendant worked as longshoremen. They were on their way home from work. Defendant was driving. The deceased was sitting between defendant and another passenger. They were proceeding northwardly on Seventh Street. One-half block south of the Church Street intersection, they stopped to permit a ear to back out. Defendant proceeded at 15 miles per hour, slackened speed at the Church Street intersection, and was struck by the Buick coming from his left. \u201cI do not remember seeing a oar. . . . moving east on Church Street. . . . All I oan remember is the collision. ... I don\u2019t remember anything after the accident. ... I didn\u2019t see anything coming as I proceeded to cross the \u00a1street. ... I don\u2019t remember ever putting the brakes on. I don\u2019t remember ever seeing the oar with which I had the \u00a1collision. ... I regained consciousness in \u00a1the . . . hospital. . . . I had slowed down to see if \u00a1anything was coming. That is about 'the last act I remember doing. ... If a oar had been coming up Church Street going east on Church with its lights \u00a1on, there is no reason that I couldn\u2019t have seen it. I juist put my foot on the brake -to slow it down a little bit. I was traveling in second gear at that time. . . . Church Street was a dark street and Seventh Street was a dark street. ... You could see \u00a1about 25 to 30 feet down there from the position 25 feet back.\u201d\nNo eyewitnesses, other than the defendant, testified.\nWhen plaintiff rested her case, defendant demurred to the evidence and moved for judgment of involuntary nonsuit. The motion was allowed. From judgment dismissing the \u00a1action, plaintiff appealed, assigning error.\nEverett, Everett & Everett and C. J. Gates for plaintiff, appellant.\nElkins & Colder and Royce S. McClelland for defendant, appellee." }, "file_name": "0712-01", "first_page_order": 754, "last_page_order": 760 }