{ "id": 8619794, "name": "JAMES M. DOWNS, Administrator of the Estate of JAMES DOWNS, JR., deceased v. CLYDE W. ODOM and J. T. ODOM, t/a ODOM TILE COMPANY, and ERNEST TAYLOR, JR.", "name_abbreviation": "Downs v. Odom", "decision_date": "1959-04-08", "docket_number": "", "first_page": "81", "last_page": "85", "citations": [ { "type": "official", "cite": "250 N.C. 81" } ], "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": "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": "76 S.E. 2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "237 N.C. 734", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618969 ], "opinion_index": 0, "case_paths": [ "/nc/237/0734-01" ] }, { "cite": "96 S.E. 2d 686", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614439 ], "opinion_index": 0, "case_paths": [ "/nc/245/0553-01" ] }, { "cite": "27 S.E. 2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "223 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614690 ], "opinion_index": 0, "case_paths": [ "/nc/223/0626-01" ] }, { "cite": "27 S.E. 2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "223 N.C. 635", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614925 ], "opinion_index": 0, "case_paths": [ "/nc/223/0635-01" ] }, { "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": "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": "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" ] } ], "analysis": { "cardinality": 537, "char_count": 10465, "ocr_confidence": 0.389, "pagerank": { "raw": 1.3048998815405778e-07, "percentile": 0.6230112257509994 }, "sha256": "b5f7ada46872fc93279be9066ec827c176d651c6930b2e6d2876bfd03ae4f343", "simhash": "1:804f7f602a0fe050", "word_count": 1795 }, "last_updated": "2023-07-14T15:44:40.326881+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JAMES M. DOWNS, Administrator of the Estate of JAMES DOWNS, JR., deceased v. CLYDE W. ODOM and J. T. ODOM, t/a ODOM TILE COMPANY, and ERNEST TAYLOR, JR." ], "opinions": [ { "text": "DeNNY, J.\nThe only question presented for determination on this appeal is whether or not the trial court committed error in sustaining the defendants\u2019 motion for judgment as of nonsuit.\nThe 'accident occurred at an intersection which had no stop signs or traffic signals. The statute governing such an intersection is G.S. 20-155, \u25a0which in pertinent part reads a\u00ae follows: \u201c(a) When two vehicles approach or enter\u2019 an intersection and/or junction 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 * * *. (b) The driver of a vehicle approaching but not having entered an intersection and/or junction, shall yield the right of way to a vehicle 'already within such intersection and/or junction whether the vehicle in the junction is proceeding straight .ahead .or turning in either direction * *\nSubsection (a) of the above statute does not 'apply unless the two vehicles .approach or enter the intersection at \u2018approximately the same time. Under subsection (b) of the .statute the vehicle first reaching an intersection which has no stop sign or traffic signal has the right \u2022of way over a vehicle subsequently reaching it, irrespective of their directions of travel; .and it is the duity of the driver of the latter vehicle to delay his progress and allow the vehicle which first entered the intersection to pass in safety. S. v. Hill, 233 N.C. 61, 62 S.E. 2d 532; Donlop v. Snyder, 234 N.C. 627, 68 S.E. 2d 316; Kennedy v. Smith, 226 N.C. 514, 39 S.E. 2d 380; Crone v. Fisher, 223 N.C. 635, 27 S.E. 2d 642; Yellow Cab Co. v. Sanders, 223 N.C. 626, 27 S.E. 2d 631.\nThe defendants cite and rely on Taylor v. Brake, 245 N.C. 553, 96 S.E. 2d 686; Freeman v. Preddy, 237 N.C. 734, 76 S.E. 2d 159; and Bennett v. Stephenson, 237 N.C. 377, 75 S.E. 2d 147. We think the facts in these cases are distinguishable from .those in the instant case.\nIn Taylor v. Brake supra, the facts were somewhat similar to those involved on this .appeal, except there was no -evidence that either car involved in the collision was exceeding the speed limit. At the close of all the evidence the court sustained the defendants\u2019 motion for judgment a-s of non-suit. On -appeal, this Court, speaking through Parker, J., said: \u201cPlaintiff contends that the case \u00a1should 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: \u2018The court cannJot submit -a case to the juiry on -a -particular theory unless -such theory is supported -by both the pleadings and the evidence.\u2019 Plaintiff has not alleged any where in his corn-plaint 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 \u2018negligently, recklessly and carelessly failing to yield the right -of w-ay to this plaintiff\u2019s automobile -as by law required.\u2019 \u2018To -characterize an act or course of conduct -as negligent without more is insufficient. As stated in McIntosh -on Prac. and Proc., sec. 388, \u201cIn negligence oases, 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.\u201d \u2019 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 waly by virtue of G.S. 20-155 (b).\u201d The judgment as of nonsuit was affirmed.\nIn the in-shant c-ase the -plaintiff alleged in his pleadings and offered testimony -at the trial tending to show (that the Downs car entered the intersection first.\nIn the case -of Freeman v. Preddy, supra, the case was submitted to the jury -on plaintiff\u2019s -cause of action -and the defendants\u2019 cross-action. Issues of negligence, contributoiy negligence and dam-ages were submitted to the jury. Tire jury answered the issues of negligence and contributory negligence hr the affirmative as to both causes of action. On appeal by the defendants, we found no error.\nIn the case of Bennett v. Stephenson, supra, tire evidence was to the effect that both cars were \u2018being operated around 30 miles per hour; that the collision occurred in the intersection of West Edgerton Street and North Orange Avenue, in tire Town of Durar, slightly West of the center of the intersection. Skid marks from each ear measured 36 feet. On appeal from a judgment as of nonsuit, we affirmed.\nIn the instant ease it was stipulated that the legal speed limit where the accident occurred was 25 miles per hour. There is evidence that the Downs car\u2019 was being operated at a speed of 15 or 20 miles per hour and that the Odom truck was being operated at a speed of 35 or 40 miles per hour.\nOn a motion for judgment a-s of nonsuit a plaintiff is entitled to have the evidence considered in the light most favorable to him and to the benefit of every reasonable inference to be drawn therefrom. When tire, evidence is so considered, we think it is sufficient to carry the case \u00a1bo the jury. Donlop v. Snyder, supra, and cited cases.\nIn our opinion, the question as to whether or not the driver of the Downs car was guilty of contributory negligence by entering the intersection at the time and under the conditions then existing, is for the jury. Donlop v. Snyder, supra; Kennedy v. Smith, supra.\nThe judgment of the court below is\nReversed.", "type": "majority", "author": "DeNNY, J." } ], "attorneys": [ "Fountain, Fountain, Bridges & Horton for plaintiff.", "Battle, Winslow & Merrell, iby Robert M. Wiley, for defendants." ], "corrections": "", "head_matter": "JAMES M. DOWNS, Administrator of the Estate of JAMES DOWNS, JR., deceased v. CLYDE W. ODOM and J. T. ODOM, t/a ODOM TILE COMPANY, and ERNEST TAYLOR, JR.\n(Filed 8 April, 1959.)\n1. Automobiles \u00a7 17\u2014\nG.'S. 20-155(a), providing' that the vehicle on the right has the right of way at an intersection which has no stop signs or traffic signals, applies only when two vehicles approach or enter the intersection at approximately the same time.\n3. Same\u2014\nThe vehicle first reaching an intersection which has no stop signs or traffic signals has the rig'ht of way over a vehicle subsequently reaching it, irrespective of their directions of travel, and it is the duty of the driver- of the later vehicle to delay his progress and allow the vehicle which first entered the intersection to pass in safety.\n3. Automobiles \u00a7\u00a7 41g, 42g\u2014 Evidence held for jury on question of negligence in entering intex-section after another car had entered the intersection.\nidle evidence tended to show that the ear in which plaintiff\u2019s intestate was riding was being operated by \u00a1has another, south at a speed of 15 or 20 -miles per hour, and that defendant's truck was being operated east at a speed of 35 or 40 miles per hour, in -approaching -an intersection \u00a1having a legal speed limit of 25 miles per hour, that the car in which intestate was riding was first in the intersection, and was struck on its light side just back of the headlight, and that the impact occurred on -the west side o-f -the center -of the intersection. Sold,: The evidence was sufficient to he submitted to -the jury on the issue -of defendant\u2019s negligence and does mot disclose negligence as -a matter of law on -the part of intestate\u2019s m-other which could be imputed to plaintiff as a bar to recovery.\nAppeal by plaintiff from Sharp, Special Judge, November Term 1958 of Edgecombe.\nThis is an action instituted by the plaintiff to recover damages from the defendants -on account of the wrongful death of plaintiffs intestate w-h-en a truck belonging to defendants Odom and -operated by the defendant Taylor collided with the Downs automobile.\nPlaintiff\u2019s intestate, -a 4-moat