#### LAURA TAYLOR HONEYCUTT, by her next friend, A. A. HONEYCUTT, Plaintiff v. JERRY WAYNE STRUBE and RALPH NEIL STRUBE, Defendants. and A. A. HONEYCUTT, Plaintiff v. JERRY WAYNE STRUBE and RALPH NEIL STRUBE, Defendants.

(Filed 17 January 1964.)

1. Automobiles § 38—

Evidence -disclosing -that tbe ■aittemitio-n of Hue witness was attracted to a ear with, a loud muffler1 which passed her home -a quarter -of a mile from the scene of the collision, that no other car with ia loud muffler passed her home that morning, and that -the collision occurred shortly thereafter, with evidence tending to -identify the car she saw with th-alt driven by defen-*60darnt, is held .to render competent lier testimony from her observation of •the oar as to its speed.

2. Automobiles § 41b— Evidence of excessive speed constituting proximate cause of injury held sufficient to take the issue to the jury.

The accident in suit occurred immediately north of a one-way bridge on a two-lane highway, between, a oar driven south by plaintiff! and a oar driven north by defendant. Opinion testimony as to the speed of defendant’s car immediately prior to the collision together with testimony as to the physical facts at the scene immadiia|fcely after the collision, held sufficient to show that defendant ,was operating his car at an excessive and -unlawful speed and (that notwithstanding he saw, or by the exercise iof due care should have seen, plaintiff’s oar in morion or standing on the north side of the bridge, defendant did not bring his car under control but continued across -the bridge at such unlawful speed until the moment of collision, and that such negligence was a proximate cause of the collision.

3. Negligence § 21—

(The burden is upon defendant to prove contributory negligence.

4. Automobiles § 44—

Where the physical facts at the scene of the .collision permit inferences that immediately before the impact plaintiff’s car was on its right side of •the highway and also that it was to (the left -of itsi center of the highway, there being mo eyewitness to the collision!, the position of plaintiff’s car immediately -prior to the collision rest-s in mere surmise, and -the evidence is insufficient to ibe submitted |bo the jury on the contention that plaintiff was guilty of contributory negligence in failing to keep her car on the right side of the highway, and therefore any error in the court’s instruction upon the issue of contributory negligence is- harmless upon defendant’s appeal.

Appeal by defendants from Olive, Emergency Judge, February 1963 Civil Session of CabaRRus.

These -civil actions, -consolidated for trial, -grow out of a collision that occurred September 6, 1960, about 11:00 a.m., between a 1950 Chevrolet (Honeycutt car) and a. 1956 Ford (Strube oar). The Honey-cutt car .wais owned .by A. A. Honeycutt 'and was ¡being operated by hie wife, Laura Taylor Honeycutt. The Strube car was- owned by Ralph (Neil) Strube and was being operated by his minor son, Jerry (Wayne) Sitruibe.

The pleadings establish the following facts: The collision occurred in Cabarrus County, North Carolina, on -a paved tw-O'-lane 'highway known as Roberta Mill Road, which extends between the Roberta Mill community (Roberta) and Concord. This highway, -at the place where the 'Collision -occurred, -runs generally north-south. The Honeycutt ear w-as proceeding in ¡a southerly -direction approaching (from the direction of Concord) the bridge (approximately sixteen feet wide) across *61Meadow Branch. The Strobe ear, proceeding in a (northerly direction toward Concord, 'crossed the Meadow Bramah bridge and collided with the Honeycutt car at a point north of the bridge. At each end of the bridge, and some .distance therefrom, the State of North Carolina had erected a sign bearing the legend, “One Lane Bridge”; and one of these signs was visible to drivers .approaching the bridge from each direction. In .approaching the bridge from, the south, “there is .a curve to the right and then a downgrade f or several hundred feet . . . before reaching the bridge.”

Mrs. Honeycutt’s (action is to recover damages for serious and permanent injuries she .sustained ¡as a result of said collision. Her husband’s action is .to recover (1) damages for alleged destruction of the Honeycutt car and (2) for amounts he paid or is obligated to .pay for expenses (hospital, medical, nursing, drugs, special equipment) necessarily incurred by him in connection with the care and treatment of his wife.

The complaints contain identical allegations as to the .alleged actionable negligence of defendants. Each plaintiff alleged the collision and resulting 'injuries and damages w'are proximately caused .by the negligence o,f defendants in that Jerry Strobe, in approaching and crossing the 'bridge and in colliding with the Honeycutt car, operated the Strobe car (1) at excessive and .unlawful speed; (2) failed to keep a proper lookout; (3) failed to keep his car under proper control; (4) failed to 'drive on his right half of the highway; and (5) in general, under existing conditions, operated his car in a reckless and heedless manner.

In each action, Jerry Strobe, by his guardian ad litem, Ralph Strobe, and Ralph Strobe, individually, filed joint answers. They denied all allegations as to the alleged actionable negligence of Jerry Strobe. Conditionally, they .pleaded contributory negligence, alleging as .a basis for such plea that the .collision was proximately caused by the negligence of Mrs. Honeycutt in that (1) she failed to- drive her oar on her right half of the highway, (2) failed to keep a proper lookout and (3) failed to keep her car under proper control.

Counterclaims 'alleged by defendants are not now -involved. A settlement thereof was made, without the consent or approval of plaintiffs, by and between plaintiff’s liability insurance carrier and defendants “without prejudice to the rights of the plaintiffs to proceed with the prosecution of their respective causes of action against the defendants to final .adjudication.”

The cases came on for trial on issues relating .solely to plaintiffs’ causes of action.

*62R was 'admitted that Ralph Strube is liable for damages caused by the 'aicti-ooafo'le negligence, if any, oif Jerry Strube.

The ¡only evidence was that offered by plaintiffs. Pertinent portions thereof will be set forth in the opinion.

The issues submitted and the jury’s answers are as follows: “1. Was the plaintiff, Laura Taylor Honeycutt, injured by the negligence of the defendants as alleged in the complaint? ANSWER: Yes. 2. If so, did the plaintiff by her own negligence contribute to- her injuries -as alleged in the answer? ANSWER: No. 3. What amount, if any, is the plaintiff, Laur-a Taylor Honeycutt, entitled to recover of the defendants on account of said injuries? ANSWER: $25,000.00. 4. What aanoumit, if any, is the plain-tiff, A. A. Honeycutt, entitled -to- recover of the defendants a. For property damage? ANSWER: $250.00. b. For medical expenses? ANSWER: $9,000.00.”

A (consolidated) judgment for plaintiffs-, in-accord with the verdict, was entered: Defendants excepted and appealed.

Craighill, Rendleman & Clarkson; Iiartsell, Hartsell & Mills and John R. Ingle for plaintiff appellees.

Williams, Willeford & Roger for defendant appellants.

Bobbitt, J.

The occupants -of the Honeycutt car were Mi’s. Honey-cutt -and ia little boy (aged fifteen months) whom she wais keeping. Since the collision, as a result of the -brain injury she received, Mrs. Honeycutt ibais been ;and is now unconscious, unable in any respect to take care of herself. -She iis fed -artificially. Artificial means are required for the functioning of -her kidneys -and bowels. Constant nursing has been and is required. In the -opinion of the physician who ha® treated her -from, the day she was- injured, “the prognosis is -completely hopeless as far as ever recovering any consciousness or ever becoming aware of her -surroundings. . . . she hais complete, total disability as a result of the wounds which I saw -that she had -on the 6th day of September, 1960.”

The foregoing explains (1) why Mrs. Honeycutt was not and could not be a witness and (2) why this action is being prosecuted in her -behalf by ¡a next friend. It -is noted that defendants- do not assign error in -respect of the amount of damages awarded -in either case.

Defendants -assign -as error (1) the denial of their motions for judgments of involuntary nonsu-it, (2) the admission -of certain testimony as to the speed of the Strube car, and (3) -the failure of the -court to ap-p-ly the law to the facts in -the instructions given the jury with reference to the contributory negligence issue.

*63No -person Who saw the collision testified. The evidence indicates there -was no eye witness other than the -occupants oí the two oars.

There was evidence -tending to show the foil-owing:

The Reverend Howard Taylor lives 'on the Roberta Mill Ro-ad approximately -one -mile south -o-f the Meadow Branch bridge. On September 6, 1960, about 11:00 a.m., the Strube -ciar, -a 1956 dark blue Fo-rd, headed toward Conoo-rd, -appro-ached -and -pa-s-s-ed the Taylor home, attracting -attention -by the noise of its “loud mufflers.”

Mrs. Nancy Easley lives on the Roberta Mill Ro-ad, “approximately mid-dleway-s” -between the home oí the Reverend Howard Taylor and the Meadow Branch bridge. Mrs. Easley’s testimony includes a statement .th-at she lived “a -little under a quarter oí -a mile fro-m the Meadow Branch bridge.” Appro-aching the bridge from the south, Mrs. Easley’s home is -on the left -side o-f the ro-ad. Her -attention wa-s attracted by the -roar of the motor of “a ’55 -or ’56 model dark blue Ford” which, in her opinion, approached and passed her house at a speed -of “(a)round eighty miles an- hour.” Mrs. Easley testified it p-a-ssed her house “approximately between quarter to- eleven and eleven o’clock” on the morning -o-f September 6, 1960. No other ear with -a 1-o-ud muffler p-a-ssed her home that morning.

Mis. Rachel Orisco- lives -on th-e Roberta Mill Ro-ad “a-t least 300 feet” -south of Meadow Branch bridge, “-on -the -left going towards Concord.” A “few -seconds” before the collision, -a -ear, headed toward Concord, “whizzed-by” Mrs. Grisco-’s home, -attracting her attention by the loud -and unusual “noise” and “racket” it was making. “Right after” the car passed, Mrs. Crisco -heard “the c-raislh.” She testified: “It sounded -like it was just tearing it -all to pieces.” M-ns. Crisco- went to the ro-ad. From there -she saw “th-e fo-aby” -standing “on the edge of the bridge.” She did not go to the scene -of -the -collision until after -an ambulance had taken Mrs. Honeycutt -to the hospital.

Mr. -and Mrs. William Taylor saw -and identified the Strube oar while standing in the front yard o-f -the Reverend Howard Taylor. They had stopped while -on their way fro-m Roberta to Concord and were -getting into their -oar when the Strube -ear p-assad. Resuming their trip, -they -arrived at th-e -scene of -co-llision “a-bout two minutes” after the Strube ear had passed th-e Taylor ho-me. Meanwhile, the collision bad -occurred. Upon arrival at th-e scene, -one Jerry Go-chrane “was -picking -up the baby -about middle way of the bridge.” Jerry Go-chrane handed ■the b-aby to Mrs. Taylor.

In addition -to the foregoing, evidence (set forth below) descriptive of -the -contour of the highway south -o-f th-e Meadow Branch bridge and -o-f the eon-sequences of the impact -bears upon whether the Strube car was being operated at excessive and unlawful speed.

*64It iseems appropriate now to consider defendants’ assignment of ■error based on their exception to the admission over itheir objection ¡of the opinion evidence of Mrs. Easley as to the speed of the “ ’55 or ’56 model dark blue Ford,” with loud mufflers, that passed her home headed toward Concord about 11:00 a.m. on September 6, 1960.

Defendants contend ¡the opinion testimony of Mrs. Easley was inadmissible on 'account of “remoteness, lack of observation, failure of identity, ¡and lack of foundation.”

“It is a general rule of law, adopted in- this State, that .any person of ordinary intelligence, who has had an opportunity -for observation, is competent to testify .as to the rate .of speed of .a ¡moving object, such as ■an automobile.” Lookabill v. Regan, 247 N.C. 199, 201, 100 S.E. 2d 521, and cases cited; Hicks v. Love, 201 N.C. 773, 161 S.E. 394.

There was plenary evidence that the dark blue Ford (’55 or ’56), .the subject of Mrs. Easley’s testimony, was the Strube car. There was ample foundation for her opinion in. that, her .attention having ¡been, attracted by the roar of the motor, she observed the Strube car as it approached, a,s ¡it passed and as it moved on toward the Cris#» home and the Meadow Branch bridge. A® to remoteness, we think the evidence .affords a sufficient basis for a finding that there was no appreciable interval between the time the Struibe car passed from Mi’s. Eas-ley’s vision until the collision. The .approach of the Strube oar attracted the attention of Mrs. Crdisieo ¡in the same manner it had attracted Mrs. Easley’s .attention and “(r)ight after” it passed Mrs. Qrisco’s home ¡the crash was heard. Too., when, the Taylors ¡arrived at the scene of ¡collision, “about two minutes” after they .saw the Strube car pass the home of the Reverend Howard Taylor, ¡sufficient time ¡had elapsed for Jerry Cochrane to. get to the .bridge and ¡pick up the baby.

In. our view, the opinion testimony of Mrs. Easley was not inadmissible on account of remoteness or otherwise. Defendants’ contentions bear on the weight rather than, the competency of this testimony. Decisions supporting the view that Mrs. Easley’s opinion testimony was not inadmissible on .the ground of .remoteness include the following: S. v. Leonard, 195 N.C. 242, 251, 141 S.E. 736; S. v. Peterson, 212 N.C. 758, 194 S.E. 498; Wilson v. Camp, 249 N.C. 754, 107 S.E. 2d 743; Adkins v. Dills, 260 N.C. 206, 132 S.E. 2d 324. The only case -cited by defendants is Corum v. Comer, 256 N.C. 252, 123 S.E. 2d 473. Suffice to say, the law as .stated therein is in accord with present decision but the facts are quite different.

All testimony concerning the Honeycutt car relate© to physical facts ¡observed after the collision. Plaintiffs’ allegations that the Honey-cutt car wais brought “to- a stop, or substantially to ¡a stop,” prior to *65collision, wais denied by defendants. There is no evidence, unless inferences from physical faicls, bearing upon whether the Honeycutt oar was stopped or in motion when the collision occurred.

There was testimony tending .to show the following:

In -approaching Meadow Branch bridge from Concord, there is “a slight curve” and then “for several hundred -feet” .the road is straight.

In approaching the bridge from Roberta, there is “a pretty sharp curve” to the right. Before you get .to .this curve, a sign gives warning that you .are approaching a one-way bridge. From the apex of this curve to 'the .bridge, the road is straight for 250 feet. You .can see the bridge “approximately 250 to 300 feet before you get .to it.” Generally, from Roberta to the bridge “the road is up and down right smart, right smart umlevel.”

The road was dry. The weather was clear. The maximum speed limit was 55 miles per hour. The width of the .paved 'portion, of the road was sixteen feet and -ten inches. The width of the bridge was seventeen feet. The center’ of the road wais not marked “right at the bridge.” The pavement “had bean put down in .two. sections” and you could “pretty generally tell from looking at the pavement where the center -was”— “.the breaking point was about tire center of the road.” There was no evidence as to the length of the bridge.

With reference to conditions existing at the scene after the collision, there was. evidence tending to- .show the following:

Both cars were north (on ¡the Concord side) of the bridge. The patrolman testified “(t)he skid marks .and debris were approximately 15 feet from the -end of the bridge.” The Honeycutt ear was on the right side of .the road going toward Roberta. The front wheels were near or “just off” ¡the edge of the pavement. The rear of the Honeycutt car “was near the center of the road.” According to one witness, the Honey-cutt car “was facing the woods.” Another testified the Honeycutt car was “pointed towards the banister of the bridge.” One witness testified the Honeycutt -car was “about two foot from the comer of the bridge.”

The right door o-f the Flomeycutt (two-door) car was open. The left door was closed. The baby was on the bridge. Mrs. Honeycutt was on ■the left iside of -the -road going -toward Roberta. She was “laying across a barbed wire fence” with her head “against that post in the grass,” near the ¡northeast corner of the bridge, .approximately 21 feet from the Honeycutt car. The motor -from the Honeycutt ear, which weighed 200-300 -pounds, and the battery (“busted all to pieces”) were to the right of the road going toward Roberta, down the bank -and near the branch, some 25-45 feet from the Honeycutt car.

*66The Strobe oar was headed at 'am .angle into a ditch ¡and bank “off to the right hand side of the road” going toward Concord. The rear of it wais toward the road. It was 160 feet or more north of the Honeycutt ear. A witness testified he went to the Strobe oar and that Jerry Strobe, the only person he saw there, told him “'he couldn't lift his leg.”

The Honeycutt oar blocked the right side of .the road .going toward Roberta. The greater part of the debris was on that side of the road. The right side going toward Concord was not 'blocked. Traffic could move on the paved portion thereof.

Tire front .portions of both cars were damaged. The more extensive damage was to the right front of the Honeycutt ear and to the left front of the ¡Strobe ear. Apparently, the Strobe ear struck the Honey-cutt ear -with isueh force .as to cause it to spin around ‘and make nearly a .complete .circle. There was much evidence .concerning 'the circular shape of certain lateral tire or skid marks. There wais evidence a portion of ¡such marks extended a short distance to. -the left of the center of the road going toward Roberta. As described by the investigating patrolman, “the circular ¡skid marks” were “in a counter-clockwise motion as you are looking towards the bridge from .the Concord side. . . . Ais to the ¡center of the highway, the skid marks ranged from the right side of the road over . . . just a little bit across the center . . . of the mad and back.”

Further statement of the evidence is unnecessary. It is noted that neither Jerry Strobe nor Jerry Cochrane testified. The evidence does not disclose how and when Jerry Cochrane arrived at the scene of collision.

When considered in the light most favorable to plaintiffs, the evidence was sufficient to ¡support findings that Jerry Strobe, when approaching Meadow Branch bridge, was operating the Strube car at excessive and1 unlawful speed; that notwithstanding he saw or by the exercise of ¡due care should have ¡seen the Honeycutt car in motion or standing still on the month side of the bridge he did not bring the Strobe car under control 'but continued across the bridge at such speed -until the moment of collision; and that such negligence of Jerry Strulbe was a proximate ¡cause of the collision and resulting injuries and damage. Hence, defendants’ motions for judgment of nonsuit were properly denied.

Even so, defendants contend a new trial should -be awarded for error in the charge in respect of the contributory negligence issue.

The 'burden was on defendants to prove their allegations in respect of contributory negligence. No person testified who- observed (or should have observed) the Honeycutt car prior to the collision. There *67is no evidence as to Mus. Honeycutt’s alleged failure to keep a proper lookout or (her alleged failure to keep her ear under proper control. Tthe question is whether there is evidence that she operated her car on her left half of the highway in violation of G.S. 20-146 (b) and G.S. 20-148 and whether .such negligence wais a proximate cause of the collision.

There is no evidence a® to the positions of the cars as they approached the scene of collision. Was the Strobe car in the act of turning from its left to its right side of the highway when the collision occurred? There is no evidence this occurred. On the other 'hand, the evidence is not inconsistent with such occurrence.

Plaintiffs attempt to draw conclusions from physical facts observable after the collision as to the positions of the cars at the moment of collision. While there is evidence as to physical facts consistent with theories favorable to plaintiffs and other theories favorable to defendants as to the positions of the cars at the moment of collision, where the cars were as they approached the scene of collision and when the collision occurred remains the subject of theory, conjecture and surmise.

Under well settled legal principles stated in Boyd v. Harper, 250 N.C. 334, 339, 108 S.E. 2d 598, and in eases cited therein, the evidence was insufficient to justify the submission of the contributory negligence issue. In this connection, see Parker v. Flythe, 256 N.C. 548, 124 S.E. 2d 530. Hence, error, if any, in respect of the court’s instructions bearing upon the contributory negligence issue is harmless. Bruce v. Flying Service, 234 N.C. 79, 66 S.E. 2d 312.

No error.