{ "id": 8570562, "name": "RAYMOND EASTER EASON v. JIMMIE GRIMSLEY, DAN BRAXTON t/a DAN BRAXTON TRUCKING COMPANY and WHITE OWN MOTOR COMPANY", "name_abbreviation": "Eason v. Grimsley", "decision_date": "1961-10-11", "docket_number": "", "first_page": "494", "last_page": "498", "citations": [ { "type": "official", "cite": "255 N.C. 494" } ], "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": "51 S.E. 2d 307", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "229 N.C. 707", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12167679 ], "opinion_index": 0, "case_paths": [ "/nc/229/0707-01" ] }, { "cite": "64 S.E. 2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609499 ], "pin_cites": [ { "page": "419" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0415-01" ] }, { "cite": "100 S.E. 2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 340", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626975 ], "pin_cites": [ { "page": "346" } ], "opinion_index": 0, "case_paths": [ "/nc/247/0340-01" ] }, { "cite": "57 S.E. 2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630657 ], "pin_cites": [ { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0494-01" ] }, { "cite": "119 S.E. 2d 634", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "254 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627331 ], "opinion_index": 0, "case_paths": [ "/nc/254/0599-01" ] }, { "cite": "28 S.E. 2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "223 N.C. 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616493 ], "opinion_index": 0, "case_paths": [ "/nc/223/0730-01" ] }, { "cite": "90 S.E. 2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623398 ], "opinion_index": 0, "case_paths": [ "/nc/243/0247-01" ] }, { "cite": "112 S.E. 2d 543", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "251 N.C. 719", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627343 ], "opinion_index": 0, "case_paths": [ "/nc/251/0719-01" ] }, { "cite": "101 S.E. 2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627881 ], "pin_cites": [ { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/nc/247/0570-01" ] }, { "cite": "62 S.E. 2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598021 ], "opinion_index": 0, "case_paths": [ "/nc/233/0065-01" ] }, { "cite": "119 S.E. 2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "254 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626586 ], "opinion_index": 0, "case_paths": [ "/nc/254/0421-01" ] }, { "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" ] } ], "analysis": { "cardinality": 537, "char_count": 11386, "ocr_confidence": 0.54, "pagerank": { "raw": 2.6180005717544146e-07, "percentile": 0.8210438137513036 }, "sha256": "6b58a33f363cf5ac0e543a6945cfaa4881a88fa25105f659d5296174e56e0740", "simhash": "1:479395bf862f2c77", "word_count": 1967 }, "last_updated": "2023-07-14T18:41:58.690444+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RAYMOND EASTER EASON v. JIMMIE GRIMSLEY, DAN BRAXTON t/a DAN BRAXTON TRUCKING COMPANY and WHITE OWN MOTOR COMPANY." ], "opinions": [ { "text": "MooRe, J.\nThe sole question is whether or not the court erred in granting nonsuit.\nWhen considered in the light most favorable to plaintiff, the evidence tends to show: On 25 March 1960, about 8:30 A.M., plaintiff was owner of and a passenger in an automobile, driven by his son. It was drizzling rain. The automobile was proceeding eastwardly on Plighway 97 in or near Leggett. The driver observed a slow-moving tractor-trailer ahead, proceeding in the same direction. The highway was straight, and the speed of the automobile about 35 miles per hour. When about 50 yards from the tractor-trailer, the driver of the automobile sounded the horn and pulled to the left to pass. He saw \u201cno indication of the blinker lights blinking off and on the\u201d tractor-trailer. He \u201csaw no signals whatsoever.\u201d As the automobile got even with the cab of the tractor, the tractor turned left to enter a narrow, dirt side-road or path at the north edge of the highway. There is no highway marker indicating a side road at this point. The bumper and left fender of the tractor struck the automobile on the right front fender just behind the head lights. The automobile \u201cwas close to two feet from the center line when the collision occurred.\u201d The tractor-trailer was to the right of the center line when the automobile started to pass. The investigating patrolman found \u201ca little dirt on the center line and approximately 18 inches to 2 feet north or left of the center line.\u201d When he examined the electric turn signals on the tractor-trailer and turned them on, the lights on the rear \u201cdid not blink; they just came on and stayed on.\u201d All of the rear lights were completely covered with mud or road scum, and you could not see them over a distance of 12 or 14 feet to tell whether they were on or off. They were very dim.\u201d The driver of the tractor-trailer stated to the patrolman that \u201che looked in the mirror and did not see a vehicle behind him and that just as he started to turn he looked in the rear view mirror again, and the car was right up along side of him,\u201d and that \u201che gave a signal, but did not hear a horn blow.\u201d\nDefendants offered evidence contradicting, in material part, most of plaintiff\u2019s evidence.\n\u201cWhere the defendant introduces evidence G.S. 1-183 requires (on motion to nonsuit) a consideration of all the evidence; even so, it is clear that only that part of defendant\u2019s evidence which is favorable to plaintiff can be considered, since otherwise the court would have to pass upon the weight and credibility of the evidence.\u201d (Parentheses ours). 3 Strong\u2019s Index, Negligence, s. 24a, p. 471; Wall v. Bain, 222 N.C. 375, 23 S.E. 2d 330.\nFrom the evidence favorable to plaintiff the inference is permissible that defendants were negligent in that they failed to give a \u201cplainly visible\u201d signal of intention to turn left, did not keep a proper lookout, and did not heed plaintiff\u2019s warning horn, and that such negligence was a proximate cause of the collision. G.S. 20-154; Jones v. Mathis, 254 N.C. 421, 119 S.E. 2d 200; Grimm v. Watson, 233 N.C. 65, 62 S.E. 2d 538. Other inferences of negligence on the part of defendants may be drawn from the evidence, but they were not pleaded and cannot be considered. There must be both allegation and proof. Poultry Co. v. Equipment Co., 247 N.C. 570, 572, 101 S.E. 2d 458.\nDefendants insist that plaintiff\u2019s evidence shows that he was con-tributorily negligent as a matter of law. It is the contention of defendants that the negligence of the automobile driver is imputed to plaintiff, owner-passenger, and therefore plaintiff was contributorily negligent in that the driver (1) failed to pass the tractor-trailer \u201cat least two feet to the left thereof,\u201d G.S. 20-149(a), and (2) failed to keep a proper lookout and to give heed to defendants\u2019 turn signal.\nThe owner of an automobile, riding therein as a passenger, ordinarily has the right to control and direct its operation. The negligence, if any, of a party operating an automobile with the owner-passenger\u2019s permission or at his request is, nothing else appearing, imputed to the owner-passenger. Shoe v. Hood, 251 N.C. 719, 112 S.E. 2d 543; Dosher v. Hunt, 243 N.C. 247, 90 S.E. 2d 374; Baird v. Baird, 223 N.C. 730, 28 S.E. 2d 225.\nThe evidence, when considered as a whole, does not establish as an uncontradicted fact that plaintiff\u2019s automobile failed to pass at least two feet to the left of the tractor-trailer. G.S. 20-149 (a) does not require a vehicle to pass \u201cat least two feet to the left\u201d of the center line of the highway; the requirement is that it pass at least two feet to the left of the other vehicle involved. The evidence on this point will admit of contrary conclusions and under proper pleadings would be for the jury. Darden v. Bone, 254 N.C. 599, 119 S.E. 2d 634. Defendants do not allege, either directly or indirectly, a violation of G.S. 20-149 (a) on the part of plaintiff, and the failure of plaintiff to comply with that statute, in the absence of proper allegation, cannot be the basis for nonsuit or a jury verdict.\nDefendants point out that plaintiff shows by the testimony of the patrolman that defendant Grimsley \u201csaid he gave a signal.\u201d And defendants insist that the declarations of the automobile driver that he did not see a signal only tend to show he was not keeping a proper lookout, and that on this point the case is controlled by the language in Moore v. Boone, 231 N.C. 494, 496, 57 S.E. 2d 783. Defendants overlook the testimony of the patrolman that the rear lights of the tractor-trailer would not blink when turned on, would come on and stay on, and were so covered with mud and scum that they were very dim and could be seen at a distance of only 12 or 14 feet away. Whether the lights would blink, and whether, if they would blink, they were \u201cplainly visible\u201d as required by G.S. 20-154, are questions for the jury. Furthermore, even if the lights were blinking and plainly visible, it was a question for the jury, under all the circumstances, whether plaintiff had the duty to yield. The giving of a turn signal indicates the intention of the signaler to make the indicated turn and requires other motorists involved to observe caution and use reasonable care, but it does not vest in the signaler an absolute right to make the turn immediately, regardless of circumstances. The signaler must first ascertain that the movement may be made in safety. G.S. 20-154(a). When circumstances do not allow the signaler a reasonable margin of safety, other motorists affected have the right to assume he will delay his movement until it can be safely made. Simmons v. Rogers, 247 N.C. 340, 346, 100 S.E. 2d 849; Ervin v. Mills Co., 233 N.C. 415, 419, 64 S.E. 2d 431.\nNonsuit on the ground of contributory negligence may not be- entered when it is necessary to rely in whole or in part upon defendant\u2019s evidence, or when diverse inferences upon the question are reasonably deducible from plaintiff\u2019s evidence. Bundy v. Powell, 229 N.C. 707, 51 S.E. 2d 307.\nThe judgment below is\nReversed.", "type": "majority", "author": "MooRe, J." } ], "attorneys": [ "Fields & Cooper for plaintiff.", "David E. Reid, Jr., James & Speight and W. H. Watson for defendants." ], "corrections": "", "head_matter": "RAYMOND EASTER EASON v. JIMMIE GRIMSLEY, DAN BRAXTON t/a DAN BRAXTON TRUCKING COMPANY and WHITE OWN MOTOR COMPANY.\n(Filed 11 October, 1961.)\n1. Negligence \u00a7 24a; Trial \u00a7 21\u2014\nIn determining a motion to nonsuit made at the close of all of the evidence, defendant\u2019s evidence in contradiction of that of plaintiff cannot he considered.\n2. Automobiles \u00a7 4 Hi\u2014\nEvidence that defendant driver attempted to turn left into a dirt road without giving a plain and visible signal of his intention to do so, did not keep a proper lookout, and did not heed plaintiff\u2019s warning horn, resulting in a collision with plaintiff\u2019s vehicle as plaintiff, travelling in the same direction, was attempting to pass, is sufficient to be submitted to the jury on the issue of negligence. G.S. 20-154.\n3. Automobiles \u00a7 41a\u2014\nInferences of negligence which arise on the evidence but which are not supported by allegation, cannot be considered in passing upon the sufficiency of the evidence.\n4. Pleadings \u00a7 28\u2014\nProof without allegation is ineffectual.\n5. Automobiles \u00a7 50\u2014\nThe negligence of the driver of a car is ordinarily imputed to the owner riding therein as a passenger, nothing else appearing.\n6. Automobiles \u00a7 14\u2014\nG.S. 20-149(a) does not require that a vehicle must pass at. least two feet to .the left of the center line of the highway in passing' another vehicle travelling in .the same direction, but only that it pass at least two feet to the left of the other vehicle.\n7. Automobiles \u00a7 42e\u2014\nWhere the evidence supports contrary conclusions as to whether plaintiff, in attempting to pass another vehicle travelling in the same direction, did or did not drive at least two feet to the left of such other vehicle, nonsuit may not be properly entered on the ground of plaintiff\u2019s violation of G.S.120-149(a) in this respect.\n8. Automobiles \u00a7 42a\u2014\nNonsuit may not be allowed on the ground that plaintiff\u2019s own evidence established plaintiff\u2019s violation of a safety statute when such violation is not pleaded by defendant.\n9. Automobiles \u00a7 42e\u2014 Evidence held not to show contributory negligence as matter of law on part of plaintiff in attempting to pass defendant\u2019s vehicle.\nThe collision in suit occurred when plaintiff\u2019s ear, while in the act of passing defendant\u2019s tractor-trailer travelling in the same direction, was struck when defendant driver attempted to turn left to enter a dirt road. Defendants contended that nonsuit should he entered upon testimony of a statement, introduced by plaintiff, that defendant driver gave a signal of his intention to turn. The witness further testified that the signal lights of defendant\u2019s vehicle would not blink when turned on but would come on and stay on, and were so covered with mud and scum that they could be seen at a distance of only 12 or 14 feet. Held: Nonsuit for contributory negligence should have been denied not only because the evidence was conflicting as to whether a proper turn signal was given, but also because it was a question for the jury whether the signal, if properly given, was given sufficiently in advance of the movement to require plaintiff to yield.\n10. Automobiles \u00a7 8\u2014\nThe giving of a signal for a left turn does not give the signaler an absolute right to make the turn immediately, regardless of circumstances, but the signaler must first ascertain that the movement may be made safely, and when the circumstances do not allow the signaler a reasonable margin of safety, other motorists affected have the right to assume that he will delay his movement until it may be made in safety. G.S. 20-154(a).\n11. Negligence \u00a7 26\u2014\nNonsuit on the ground of contributory negligence may not be entered when it is necessary to rely in whole or in part upon defendant\u2019s evidence, or when diverse inferences upon the question are reasonably de-dueible from plaintiff\u2019s evidence.\nAppeal by plaintiff from Stevens, J., March 13, 1961, term of Nash.\nThis is a civil action to recover damages for injury to plaintiff\u2019s automobile in a collision with a tractor-trailer combination, driven by defendant Grimsley and owned or in the service of the other named defendants.\nAt the close of the evidence the court allowed defendants\u2019 motion for nonsuit and entered judgment dismissing the action.\nPlaintiff appeals.\nFields & Cooper for plaintiff.\nDavid E. Reid, Jr., James & Speight and W. H. Watson for defendants." }, "file_name": "0494-01", "first_page_order": 532, "last_page_order": 536 }