{ "id": 8622343, "name": "KATE LEE JONES v. HARRY SCHAFFER, DOROTHY SCHAFFER, W. H. HARRIS, and JOHN W. HARRIS, through his guardian Ad Litem, W. H. HARRIS", "name_abbreviation": "Jones v. Schaffer", "decision_date": "1960-04-27", "docket_number": "", "first_page": "368", "last_page": "379", "citations": [ { "type": "official", "cite": "252 N.C. 368" } ], "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": "72 S.E. 2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622603 ], "pin_cites": [ { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0109-01" ] }, { "cite": "193 S.E. 166", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "212 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601836 ], "opinion_index": 0, "case_paths": [ "/nc/212/0151-01" ] }, { "cite": "167 S.E. 38", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "203 N.C. 767", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620098 ], "opinion_index": 0, "case_paths": [ "/nc/203/0767-01" ] }, { "cite": "144 S.E. 364", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "196 N.C. 36", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623251, 8623300 ], "opinion_index": 0, "case_paths": [ "/nc/196/0036-01", "/nc/196/0036-02" ] }, { "cite": "106 S.E. 818", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "181 N.C. 292", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655853 ], "opinion_index": 0, "case_paths": [ "/nc/181/0292-01" ] }, { "cite": "69 S.E. 2d 239", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "235 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622088 ], "opinion_index": 0, "case_paths": [ "/nc/235/0162-01" ] }, { "cite": "65 S.E. 2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 673", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615738 ], "opinion_index": 0, "case_paths": [ "/nc/233/0673-01" ] }, { "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": "89 S.E. 2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618761 ], "opinion_index": 0, "case_paths": [ "/nc/242/0553-01" ] }, { "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": "36 S.E. 2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "225 N.C. 717", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617513 ], "pin_cites": [ { "page": "723" } ], "opinion_index": 0, "case_paths": [ "/nc/225/0717-01" ] }, { "cite": "35 S.E. 2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "225 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610787 ], "opinion_index": 0, "case_paths": [ "/nc/225/0444-01" ] }, { "cite": "32 S.E. 2d 209", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "224 N. C. 688", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612616 ], "opinion_index": 0, "case_paths": [ "/nc/224/0688-01" ] }, { "cite": "195 S.E. 88", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "213 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626372 ], "pin_cites": [ { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/nc/213/0041-01" ] }, { "cite": "94 S.E. 2d 903", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 722", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219522 ], "opinion_index": 0, "case_paths": [ "/nc/244/0722-01" ] }, { "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": "107 S.E. 2d 544", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "249 N.C. 712", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621385 ], "opinion_index": 0, "case_paths": [ "/nc/249/0712-01" ] }, { "cite": "110 S.E. 2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "251 N.C. 33", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622182 ], "opinion_index": 0, "case_paths": [ "/nc/251/0033-01" ] }, { "cite": "45 S.E. 2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625844 ], "opinion_index": 0, "case_paths": [ "/nc/228/0273-01" ] }, { "cite": "92 S.E. 2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 45", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219517 ], "opinion_index": 0, "case_paths": [ "/nc/244/0045-01" ] }, { "cite": "102 S.E. 2d 455", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "248 N.C. 32", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618694 ], "pin_cites": [ { "page": "34" } ], "opinion_index": 0, "case_paths": [ "/nc/248/0032-01" ] }, { "cite": "113 S.E. 2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 } ], "analysis": { "cardinality": 1066, "char_count": 31514, "ocr_confidence": 0.549, "pagerank": { "raw": 6.604112327250252e-07, "percentile": 0.9617647592581653 }, "sha256": "189537be2f630fac81fccccce818c68ae3ecab974e0c40f9fa1b2510b34e4e76", "simhash": "1:d2035df21e16a255", "word_count": 5403 }, "last_updated": "2023-07-14T17:30:54.749131+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "KATE LEE JONES v. HARRY SCHAFFER, DOROTHY SCHAFFER, W. H. HARRIS, and JOHN W. HARRIS, through his guardian Ad Litem, W. H. HARRIS." ], "opinions": [ { "text": "Bobbitt, J.\nAs to defendants Harris, plaintiff seeks a reversal of the judgment of involuntary nonsuit. As to defendants Schaffer, plaintiff, contending her damages greatly exceeded $7,500.00, seeks a new trial. Actually, there are two appeals; and, while properly presented in one record, each appeal requires separate consideration.\nI\nThe Harris Nonsuit\nThe sole question is'whether the evidence offered by plaintiff, considered in the light most favorable to her, was sufficient to warrant submission thereof to the jury as to the alleged actionable negligence of John W. Harris.\nIn limine, it is noted: (1) There was ample evidence to support a finding that defendant W. H. Harris, the owner of the 1951 Nash Rambler, is liable, under the family purpose doctrine, for the actionable negligence, if any, of John W. Harris, his minor son, on the occasion of the collision. (2) Since the judgment of involuntary non-suit was entered at the close of plaintiff\u2019s evidence, the testimony offered later in behalf of defendants Schaffer is not for consideration on plaintiff\u2019s appeal from the Harris nonsuit.\nAccording to plaintiff\u2019s allegations: Harris stopped at the intersection in obedience to a red signal light. After the signal light facing him changed to green, Harris proceeded into the intersection. Mrs. Schaffer, notwithstanding the signal then facing her was red, entered the intersection at an excessive rate of speed. Mrs. Schaffer drove into the intersection first and undertook to proceed straight through it ahead of the car driven by Harris. Harris could and should have observed the prior entry and occupancy of the intersection by the car driven by Mrs. Schaffer.\nPlaintiff alleged, in substance, that Harris was negligent in that: (1) he failed to yield the right of way andi permit the Schaffer car to clear the intersection; (2) he failed to keep a proper lookout and thereby observe the Schaffer car; (3) he failed to keep his car under control; and (4) he failed to avoid a collision with the Schaffer car although he had the means to do so.\nUncontradicted evidence is to the effect that the traffic signal was red when Mrs. Schaffer approached and entered the intersection. Williamson, who was standing on the Used Car Lot at the northwest corner of the intersection, testified that he was looking (east) down Eleventh Street and first observed the approach of the Schaf-fer car when it was approximately sixty feet from the intersection and that it was 30-35 feet back from the intersection when the lights for traffic on Eleventh Street changed to red. Testimony as to when others witnesses first observed the Schaffer car will be discussed below.\nMrs. Schaffer approached and entered the intersection from Harris\u2019 left. However, whether Mrs. Schaffer or Harris had the right of way at this intersection was governed by the ordinance under which the automatic traffic control signals were erected and maintained, not by G.S. 20-155(a). Compare Kennedy v. James, post, 434, 113 S.E. 2d 889.\nThe failure of Mrs. Schaffer to stop in obedience to the red light, a violation of the city ordinance, was negligence per se. C'urrin v. Williams, 248 N.C. 32, 34, 102 S.E. 2d 455, and cases cited. Harris\u2019 liability, if any, depends upon whether, as he approached and entered the intersection, what he could and should have seen was sufficient to put him on notice, at a time when he could by the exercise of due care have avoided the collision, that Mrs. Schaffer would not stop in obedience to the red light. Currin v. Williams, supra, and cases cited.\nWhen the collision occurred, according to uncontradicted evidence, the Schaffer car was proceeding at 30-35 or 35-40 miles per hour. The highest estimate of the speed of the Harris car was five miles per hour. The front of the Harris car was 2-4 feet in the intersection. The front of the Schaffer car had proceeded some thirty feet into the intersection. The right front fender of the Schaffer car struck the left front fender of the Harris car.\nUncontradicted evidence tends to show that Mrs. Shuler and Harris stopped in their respective lanes in obedience to the red light and that neither proceeded until after the light facing them had changed from red to green. As to the exact position of their cars while they waited for the light to change, there are these discrepancies: Plaintiff, her son and Reaves testified that the front of the Harris car was (approximately) at the northerly pedestrian cross-walk line. Mrs. Shuler testified that she stopped \u201cabout the broad white line, about 11 feet from the intersection,\u201d and\" that the front of her car and the front of the Harris car were \u201ceven approximately as nearly as\u201d she could tell. Harris, whose testimony on adverse examination was offered by plaintiff, testified that he stopped \u201cabout two or three feet behind the northerly white line\u201d of the pedestrian cross-walk. He testified that the Shuler car was \u201ca little ahead\u201d of him.\nThe substance of Mrs. Shuler\u2019s testimony: When her car was stopped at the broadi white line she could see approximately sixty feet to her left up Eleventh Street. After the light facing her changed to green, she waited \u201can additional two or three seconds\u201d before starting. Her car and the Harris car \u201cbegan moving about the same time.\u201d When she started, no car moving west on Eleventh Street was in sight. As she proceeded, she saw the Schaffer car \u201ccoming around the corner of the building.\u201d It was then \u201capproximately 10 feet back from the broad white line in her lane of traffic.\u201d She \u201ccaught a glance of it out of the corner of (her) eye,\u201d applied the brakes \u201calmost simultaneously\u201d and stopped \u201capproximately two feet back\u201d from the southerly line of the pedestrian cross-walk. She traveled a distance of \u201cabout 10 feet.\u201d She testified!: \u201cYes, I did just miss getting hit by a couple of feet. Yes, an instant or so after I stopped, John Harris got hit.\u201d Again: \u201cNo, the Harris car did not get ahead of me until I stopped.\u201d\nThe substance of plaintiff\u2019s testimony: When the Harris car stopped, she was \u201clooking east\u201d and could see approximately 125 feet up Eleventh Street. She glanced at the signal light and saw it had changed to green. Simultaneously, she glanced to the left and saw the Schaffer car. When she first observed it, the Schaffer car was five to ten feet east of the intersection, was coming at a rapid rate of speed), 30-35 miles per hour, and continued at this speed until the collision. She \u201cknew it (the Schaffer car) would not stop.\u201d After she first observed the Schaffer car, Harris started to move forward. The Schaffer car entered the intersection first. On cross-examination: When Harris started forward, some cars, headed west on Eleventh Street in the traffic lane adjacent to the center of the street, had stopped in obedience to the red light. As to whether she had time, from the time she first observed the Schaf-fer car until the collision, to move, cry out, or do anything except just realize there was a car there, her testimony was that it all happened so suddenly she did not believe she had time to do so.\nThe testimony of John Douglas Jones, as to the position and speed of the Schaffer car when he observed it, is substantially in accord with the testimony of his mother. In addition, he testified: . . I watched it (the Schaffer car), I thought we were going to sit still and as it (the Schaffer car) made the main intersection line I felt us moving and I hollered out and headed for the floorboard of the car. ... At the time I felt our car begin to move for the first time, Mrs. Schaffer\u2019s car was approximately at the intersection of the main intersection.\u201d\nThe testimony of Reaves, who was facing (west) toward his right is to the effect that he did not see the Schaffer car until he heard Jones holler, \u201cLook out\u201d; that \u201c(a)fter Douglas Jones hollered, our vehicle started up to move out south on Brevard\u201d and \u201ccontinued to move out into the street\u201d; and that, after Jones hollered, he looked up and saw the Schaffer car \u201cabout five feet to the left front of Mr. Harris\u2019 car.\u201d\nThe substance of the testimony of John W. Harris: He was talking to plaintiff, facing generally to his right. When the light facing him changed to green he \u201cpaused a second or two\u201d before starting forward. He started shortly after the car to his left, the Shuler car, had started. While doing so, he was looking straight ahead. He was relying upon what the Shuler car was doing and on the green light. The Shuler car obstructed his vision to the left. The Nash Rambler \u201cwas a little smaller and a little lower\u201d than the Shuler car. The traffic lane for the Shuler car was slightly higher than the curb traffic lane. When the Shuler car came to a stop, he had his first view to his left. Then, for the first time, he saw the Schaffer car. He was then approximately at the southerly line of the pedestrian cross-walk. The Schaffer car \u201clacked approximately eight feet of having .gone all the way through the intersection at that time.\u201d He testified: \u201cThe front of my vehicle had gone about two, maybe three feet into the intersection at the time the two cars came together.\u201d\nWhile, as stated above, a bystander, who had a clear view (east) down Eleventh Street, saw the Schaffer car when it was approximately sixty feet east of the intersection, Mrs. Shuler did not see it until it was approximately ten feet east of the \u201cbroad white line,\u201d presumably the \u201cstop line,\u201d and plaintiff and her son (who were facing east) did not see it until it was 5-10 feet east of the intersection.\nUnquestionably, Harris, from the time he actually saw the Schaf-fer car, could not have avoided the collision. The crucial question is whether he could and should have observed the Schaffer car sooner, either before the Harris car began to move or before it reached and entered the intersection, and at a time when he by the exercise of due care could and should have avoided the collision.\nIn Wright v. Pegram, 244 N.C. 45, 92 S.E. 2d 416, Higgins, J., states the rule established by prior decisions as follows: \"... a motorist facing a green light as he approaches and enters an intersection is under the continuing obligation to maintain a proper lookout, to keep his vehicle under reasonable control, and to operate it at such speed and in such manner as not to endanger or be likely to endanger others upon the highway. Ward v. Bowles, 228 N.C. 273, 45 S.E. 2d 354. Nevertheless, in the absence of anything which gives or should give him notice to the contrary, a motorist has the right to assume and to act on the assumption that another motorist will observe the rules of the road and stop in obedience to a traffic signal.\u201d Stathopoulos v. Shook, 251 N.C. 33, 110 S.E. 2d 452, and cases cited. Also, see Carr v. Lee, 249 N.C. 712, 107 S.E. 2d 544.\n\u201cIt is the duty of the driver of a motor vehicle not 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; Kellogg v. Thomas, 244 N.C. 722, 94 S.E. 2d 903.\n\u201cWhile ordinarily a driver may proceed on a green or \u2018go\u2019 light or signal, he may not rely blindly thereon but should exercise due care as to others who may be in the intersection.\u201d 60 C.J.S., Motor Vehicles \u00a7 360(b). Even so, a green light is a signal for a motorist to proceed; and if, when he starts forward in response to the green light, no other vehicle is then within the intersection or approaching the intersection within the range of his vision under circumstances sufficient to put him on notice that it is not going to stop in obedience to the red light, his primary obligation thereafter is to keep a proper lookout in the direction of his travel. In such case, he has a right to assume that any motorist approaching from his left on the intersecting street will stop in obedience to the red light facing him unless and until something occurs that is reasonably calculated to put him on notice that such motorist will unlawfully enter the intersection. Here nothing occurred to direct Harris\u2019 attention to the unlawful conduct of the operator of the Schaffer car until an instant prior to the collision.\nWhile there are discrepancies as to whether the front of the Shuler car or the front of the Harris car was closer to the intersection when these cars were stopped, waiting for the light to change, the only evidence as to which of these cars started first is the following: Mrs. Shuler testified that these cars began moving about the same time and that the Harris car did not get ahead of her until after she had stopped. Harris testified that the Shuler car started first and was ahead of him until after the Shuler car had stopped.\nIndependent of evidence tending to show that Harris\u2019 view to the left, particularly with reference to the lane of travel on Eleventh Street adjacent to the curb, was obstructed by the building at the northeast corner and also by -the Shuler car, it is noted that Harris is chargeable with notice only of what he could and should have seen had he looked to his left. Stathopoulos v. Shook, supra, and cases cited. In this connection, it is noted that, according to uncon-tradictedi evidence, two or more cars, headed west on Eleventh Street in the traffic lane adjacent to the center of the street had actually stopped in obedience to the red light. This was the traffic lane of which Harris would have the better view. It is noted further that plaintiff testified the collision happened so suddenly after she (facing east) first observed the Schaffer car she had no opportunity to make an outcry or otherwise react to the emergency created by the failure of the Schaffer car to stop in obedience to the stop sign.\nIf, as the testimony of Mrs. Shuler tends to show, the Schaffer car came into view and entered the intersection after the Shuler and Harris cars had started forward, the evidence, when considered in the light most favorable to plaintiff, is insufficient to support a finding that Plarris, by the exercise of due care, should have observed the unlawful operation of the Schaffer car at a time when he, by the exercise of due care, could have stopped and avoided the collision. It is noteworthy that Mrs. Shuler was nearer to and had the better view of the. inside traffic lane in which the Schaffer car was traveling. True, she stopped when she caught a glimpse of the Schaffer car, then ten feet back from the broad white line. She missed getting hit by \u201ca couple of feet.\u201d \u201cAn instant or so\u201d after she stopped, Harris got hit. The Harris car had gone beyond the Shuler car a maximum of six feet, a maximum of four feet into the intersection. Thus, a \u201csplit second\u201d elapsed between the time Mrs. Shuler stopped and the collision. Whether Harris could have observed the Schaffer car had he looked to his left at the precise moment when it came into view is not the test. As stated by Higgins, J., in Wright v. Pegram, supra: \u201cNaturally he could take a last look in only one direction.\u201d The test is whether under all the circumstances his failure to observe it in time to have- avoided the collision may be attributed to his failure to exercise due care to keep a proper lookout. The standard of care is that of an ordinarily prudent man, not of an infallible or omniscient man.\nPlaintiff contends, and rightly so, that \u201c(d)iscrepancies and contradictions in the evidence, even though such occur in the evidence offered in behalf of plaintiff, are to be resolved by the jury, not by the court.\u201d Stathopoulos v. Shook, supra, and cases cited. She asserts, and-rightly so, that there is testimony to the effect that the Schaffer car had actually entered and was within the intersection before the Harris car started to move. Indeed, the gist of the testimony of the Jones boy and of Reaves is that the Schaffer car had reached the center of Brevard Street before the Harris car started to move. This testimony is in direct conflict with the testimony of Mrs. Shuler.\nOrdinarily, the weight to be given the testimony of a witness is exclusively a matter for jury determination. Even so, this rule does not apply when, as here, the only testimony that would justify submission of the case for jury consideration is in irreconcilable conflict with physical facts established by plaintiff\u2019s uncontradicted evidence.\nAt the time of the collision, the speed of the Schaffer car was not less than thirty miles per hour and the Harris car had attained a maximum speed of five miles per hour. The Schaffer car had crossed not less than 27 nor more than 30 feet of Brevard Street. The Harris car had moved not less than 9 feet. At a speed of thirty miles per hour (44.0 feet per second), the Schaffer car would travel 27 feet in 0.614 seconds and 30 feet in 0.682 seconds. At a speed of five miles per hour, the Harris car would travel 7.33 feet per second.\nWe assume, for present purposes, the speed of the Harris car throughout the distance traveled was five miles per hour. On this phase of the case, the evidence most favorable to plaintiff is that the Harris car was stopped at the northerly line of the pedestrian cross-walk and had traveled only two feet into the intersection when the collision occurred. At a speed of five miles per hour, the time required to travel nine feet (7.33 feet per second) would be 1.22 seconds. In 1.22 seconds, at thirty miles per hour, the Schaffer car would travel 53.68 feet. Thus, after considering all relevant factors in the light most favorable to plaintiff, if the Schaffer car had entered the intersection precisely at the time the Harris car started it would have completely crossed Brevard Street (36 feet) and gone 17.68 feet beyond before the Harris car would have reached the point where the collision occurred. The conclusion is inescapable that both the Shuler and Harris cars had started and were in motion before the Schaffer car entered the intersection and that the testimony to the contrary is without probative value. It is noted that the uncon-tradicted physical facts are in complete accord with the testimony of Mrs. Shuler, a disinterested witness.\n\u201cAs a general rule, evidence which is inherently impossible or in conflict with indisputable physical facts or laws of nature is not sufficient to take the case to the jury, and in case of such inherently impossible evidence, the trial court has the duty of taking the case from the jury.\u201d 88 C.J.S., Trial \u00a7 208(b)(5); Powers v. Sternberg, 213 N.C. 41, 43, 195 S.E. 88; Atkins v. Transportation Co., 224 N. C. 688, 32 S.E. 2d 209; Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E. 2d 337; Tysinger v. Dairy Products, 225 N.C. 717, 723, 36 S.E. 2d 246; Carr v. Lee, supra. It is noted:: \u201cThe rule that a nonsuit should be directed, if the physical facts disprove the plaintiff\u2019s case, is inapplicable if there is a substantial conflict in the evidence tending to prove the physical facts.\u201d 88 C.J.S., Trial \u00a7 245(c). Here, the relevant physical facts are established by plaintiff\u2019s uncontradicted evidence.\nPlaintiff, in addition to cases cited above, cites Cox v. Freight Lines, 236 N.C. 72, 72 S.E. 2d 25; Hyder v. Battery Co., Inc., 242 N.C. 553, 89 S.E. 2d 124; Marshburn v. Patterson, 241 N.C. 441, 85 S.E. 2d 683; Matheny v. Motor Lines, 233 N.C. 673, 65 S.E. 2d 361; and Morrisette v. Boone Co., 235 N.C. 162, 69 S.E. 2d 239. Each of these cases has been carefully considered in relation to the factual situation there presented. Suffice to say, we find nothing therein sufficient to justify reversal of the Harris nonsuit under the factual situation presented by the evidence herein.\nThe foregoing leads to the conclusion, and we so hold, that the judgment of involuntary nonsuit as to defendants Harris was properly entered and, therefore, is affirmed.\nII\nThe Schaffer Trial\nPlaintiff\u2019s assignments of error 4 through 27 are directed to the charge. Each has been carefully considered but none discloses prejudicial error or merits particular discussion. In this connection, it is noted that the jury answered the issues relating to the liability of defendants Schaffer in plaintiff\u2019s favor and awarded damages.\nDr. Powers examined plaintiff on June 22, 1959. He testified as to what plaintiff stated to him, as to what his examination disclosed, and. expressed the opinion, inter alia, that she had a permanent partial (30%) disability to' her neck.\nPlaintiff had alleged and offered evidence tending to show her loss of earnings and her inability to perform the work in which she was formerly engaged. On cross-examination by counsel for defendants Harris, this question was asked: \u201cDoctor, I believe Mrs. Jones has testified that her job was that of inspecting in a hosiery mill which, as she said, was a job at which she sat at a table or bench and handled ladies\u2019 hosiery which would be on a form and examined it to see whether they were in shape to sell or not. What is your opinion as to whether or not Mrs. Jones could go ahead and do that kind of work?\u201d The witness answered: \u201cI think that she could, is physically able to do the work, yes.\u201d Assignments of error 1 and 2 are directed to the failure to sustain plaintiff\u2019s objection to said question and to the denial of plaintiff\u2019s motion to strike the answer.\nPlaintiff, citing Marshall v. Telephone Co., 181 N.C. 292, 106 S.E. 818, and Parks v. Sanford & Brooks, Inc., 196 N.C. 36, 144 S.E. 364, contends that this opinion evidence was incompetent as an invasion of the province of the jury. The cited cases are readily distinguishable. In each, the opinion evidence considered related to the very issue upon which liability depended. Here, the opinion evidence relates solely to one of several alleged elements of damage. The admissibility of the challenged testimony, under the indicated circumstances, is supported by these decisions: Green v. Casualty Co., 203 N.C. 767, 167 S.E. 38; Leonard v. Insurance Co., 212 N.C. 151, 193 S.E. 166; Mints v. R. R., 236 N.C. 109, 114, 72 S.E. 2d 38.\nPlaintiff\u2019s remaining assignments of error are either formal or directed to matters addressed to the discretion of the trial judge. Suffice to say, we find no error in law sufficiently prejudicial to justify a new trial.\nAs to defendants Harris \u2014 affirmed.\nAs to defendants Schaffer- \u2014 no error.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Bailey & Booe 'for plaintiff, appellant.", "Carpenter & Webb for defendants Schaffer, appellees.", "Helms, Mulliss, McMillan & Johnston, W. H. Bobbitt, Jr., and Larry J. Dagenhart for defendants Harri\u00e9, appellees." ], "corrections": "", "head_matter": "KATE LEE JONES v. HARRY SCHAFFER, DOROTHY SCHAFFER, W. H. HARRIS, and JOHN W. HARRIS, through his guardian Ad Litem, W. H. HARRIS.\n(Filed 27 April, 1960.)\n1. Appeal and Error \u00a7 51\u2014\nTlie correctness of a judgment of nonsuit entered in favor of one defendant at the close of plaintiff\u2019s evidence must be determined without reference to the evidence offered thereafter by the other defendant.\n2. Automobiles \u00a7 17\u2014\nG.S. 20-155 (a) has no application to an intersection governed by automatic traffic control signals.\n3. Same\u2014\nThe failure of a motorist to stop in obedience to the red light of a traffic control signal in violation of a municipal ordinance is negligence per se.\n4. Same\u2014\nIf at the time of starting forward into an intersection in response to a green traffic signal no other vehicle is then within the intersection or approaching the intersection within the range of the motorist\u2019s vision, the motorist\u2019s primary obligation thereafter is to keep a proper lookout \u25a0in his direction of travel, and in such event he has the right to assume that a motorist approaching the intersection from his left will stop in obedience to the traffic signal unless and until something occurs that is reasonably calculated to put him on notice that such other motorist will unlawfully enter the intersection.\n5. Automobiles \u00a7 7\u2014\nIt is the duty of a motorist not merely to look but to keep a lookout in the direction of travel, and he is charged with the duty of seeing what he ought to see.\n6. Automobiles \u00a7\u00a7 39, 41a: Negligence \u00a7 24a: Tidal \u00a7 22c\u2014\nWhile discrepancies, even in plaintiff\u2019s evidence, are ordinarily for the jury to resolve in the exercise of its function in determining the weight to be given the testimony, this rule does not apply when the only testimony favorable to plaintiff on a material question is in direct conflict with the physical facts established by plaintiff\u2019s uncontradieted evidence, and when such aspect of the evidence favorable to plaintiff is inherently impossible upon the undisputed physical facts, nonsuit is proper.\n7. Automobiles \u00a7 41g\u2014 Evidence held insufficient to 'show negligence on part of driver entering intersection with green light.\nThe accident occurred at the intersection of two four-lane streets, the intersection being controlled by automatic traffic control signals. The evidence tended to show that the driver of one car involved in the collision was traveling south in the right-hand lane, that another car was to his left in the left southbound lane, that both cars started into the intersection shortly after the traffic light facing them turned green, that the driver of the ear in the left southbound lane, upon seeing a ear approaching from the left along the intersecting street at a rate of speed not less than 30 m.p.h. stopped some two feet short of the northern curb line of the intersecting street, but that the driver in the right southbound lane continued on and, when his car had gotten some two to four feet within the intersection, was struck by the westbound car. The testimony of one witness, together with plaintiff\u2019s uncontradicted testimony as to the physical facts at the scene of the accident in regard to the respective speeds of the vehicles and the distances traveled by them, disclosed that the southbound cars had started forward before the westbound car came into view and entered the intersection, although there was some testimony in conflict with the physical facts, that the westbound car first entered the intersection. Held: The evidence is insufficient to show that the driver of the car in the right southbound lane could or should have seen the westbound car in time to have avoided the collision in the exercise of due care, and nonsuit as to such driver was properly entered.\n8. Damages \u00a7 12: Evidence \u00a7 44\u2014\nA medical expert witness who has examined the injured party and given his opinion as to the permanent partial disability to her neck may testify as to the injured person\u2019s physical ability to perform a particular kind of work.\nAppeal by plaintiff from Campbell, J., August 31 Term, 1959, of MeCKleNbueg.\nPersonal injury action growing out of a collision that occurred October 26, 1957, about 2:15 p.m., between the Schaffer and Harris cars, at the intersection of North Brevard and East Eleventh Streets in the City of Charlotte.\nThe Schaffer car, a 1955 Oldsmobile, headed west on Eleventh Street, was being operated by defendant Dorothy Schaffer, the sole occupant. Her father-in-law, defendant Harry Schaffer, was the owner.\nThe Harris car, a 1951 Nash Rambler, headedi south on Brevard Street, was being operated by defendant John W. Harris, then sixteen years of age. His father and guardian ad litem, defendant W. H. Harris, was the owner.\nThere were -three passengers in the Harris car: (1) Mrs. Jones, the plaintiff, on the front seat, to the right of the driver; (2) John Douglas Jones, plaintiff\u2019s son and then thirteen years of age, on the back seat, right side, directly behind his mother; and (3) R. J. Reaves, then (about) fourteen years of age, on the back seat, left side, directly behind the driver.\nThe case came on for trial upon the issues raised by plaintiff\u2019s second amended complaint and (separate) answers thereto filed by defendants Schaffer and by defendants Harris. Plaintiff, in her second amended complaint, alleged the collision and her injuries were proximately caused by the joint and concurrent negligence of the operators of the Schaffer and Harris cars for which she was entitled to recover damages of $100,000.00 from the operators and owners of said cars.\nIn accordance with city ordinances, automatic traffic control signals had been erected for the regulation of traffic at this intersection and were functioning properly at the time of the collision, \u201cchanging from green to yellow to red and from red to green, and . . . when one light on one street would be green or yellow, the light on the other street would be red, and vice versa, and . . . they were synchronized.\u201d\nBrevard Street, north of the intersection, was thirty-six feet wide from curb to curb, with four marked traffic lanes, each nine feet wide, two (the westerly lanes) for southbound traffic and two (the easterly lanes) for northbound traffic. The Harris car approached the intersection in the right southbound lane, the lane adjacent to the curb along the west side of Brevard Street. A 1953 Ford car, operated by Mrs. Ruth M. Shuler, approached the intersection in the left southbound lane, the lane adjacent to the center of Brevard and to Harris\u2019 left.\nStreet markings in the area included the following: (1) A heavy white line, some eleven feet north of the intersection, crossed the two lanes for southbound traffic on Brevard Street. (2) A pedestrian cross-walk, a seven-foot walkway between white parallel lines, extended (thirty-six feet) between the northeast and northwest corners of the intersection. The southerly cross-walk line was in line with the curb along the north side of Eleventh Street.\nEleventh Street, east of the intersection, was forty feet wide from curb to curb, with four marked traffic lanes, each ten feet wide, two (the northerly lanes) for westbound traffic, and two (the southerly lanes) for eastbound traffic. The Schaffer car approached the intersection in the right westbound lane, the lane adjacent to the curb along the north side of Eleventh Street. Street markings, similar to those described above, were on Eleventh Street, east of the intersection and between the northeast and southeast corners of the intersection.\nA brick building, fronting on Brevard and extending sixty feet along Eleventh, occupied the northeast corner. On each street, the sidewalk extended some nine feet from the curb to the adjacent wall of this building. As they approached the intersection, this building was to the left of Mrs. Shuler and of Harris and was to the right of Mrs. Schaffer.\nThe evidence, set forth in the opinion, is for consideration against the background of the foregoing uncontroverted facts.\nAt the close of plaintiff\u2019s evidence, judgment of involuntary non-suit was entered, dismissing the action, as to defendants Harris. Plaintiff excepted to this judgment and appealed therefrom.\nEvidence was then offered by defendants Schaffer, to wit, the testimony of Mrs. Schaffer and of Eugene Schaffer, her husband.\nAt the close of all the evidence, the court submitted, and the jury answered, the following issues: \u201c1. Was the plaintiff injured by reason of the negligence of the defendant Dorothy Schaffer, as alleged in the Complaint? ANSWER: Yes. 2. Was the defendant Dorothy Schaffer acting as agent for the defendant Harry Schaffer, as alleged in the Complaint? ANSWER: Yes. 3. What amount, if any, is the plaintiff entitled to recover? ANSWER: $7,500.00.\u201d\nJudgment, that plaintiff have and-recover from defendants Schaf-fer the sum of $7,500.00 and costs, was entered. Plaintiff excepted to this judgment and appealed.\nBailey & Booe 'for plaintiff, appellant.\nCarpenter & Webb for defendants Schaffer, appellees.\nHelms, Mulliss, McMillan & Johnston, W. H. Bobbitt, Jr., and Larry J. Dagenhart for defendants Harri\u00e9, appellees." }, "file_name": "0368-01", "first_page_order": 408, "last_page_order": 419 }