{ "id": 8562971, "name": "MATTIE LEE KIDD v. CHESTLY (NONE) BURTON", "name_abbreviation": "Kidd v. Burton", "decision_date": "1967-01-20", "docket_number": "", "first_page": "267", "last_page": "271", "citations": [ { "type": "official", "cite": "269 N.C. 267" } ], "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": "96 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611264 ], "opinion_index": 0, "case_paths": [ "/nc/245/0364-01" ] }, { "cite": "120 S.E. 2d 527", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "255 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567994 ], "opinion_index": 0, "case_paths": [ "/nc/255/0186-01" ] }, { "cite": "138 S.E. 2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "262 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569608 ], "opinion_index": 0, "case_paths": [ "/nc/262/0550-01" ] }, { "cite": "121 S.E. 2d 601", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "255 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568979 ], "opinion_index": 0, "case_paths": [ "/nc/255/0329-01" ] }, { "cite": "87 S.E. 2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "567" } ], "opinion_index": 0 }, { "cite": "242 N.C. 263", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613120 ], "pin_cites": [ { "page": "269-270" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0263-01" ] }, { "cite": "148 S.E. 2d 536", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "540" } ], "opinion_index": 0 }, { "cite": "267 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559691 ], "pin_cites": [ { "page": "461" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0457-01" ] } ], "analysis": { "cardinality": 491, "char_count": 10574, "ocr_confidence": 0.559, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2062461942761914 }, "sha256": "f7a9751064c16a1b90a0adc8cae6ef284c9ebc303e2f1eaa4595a97b66a79bc4", "simhash": "1:eb65ed9d8f297de7", "word_count": 1739 }, "last_updated": "2023-07-14T15:36:18.626474+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MATTIE LEE KIDD v. CHESTLY (NONE) BURTON." ], "opinions": [ { "text": "Bobbitt, J.\nThe only question presented is whether the court erred in granting defendant\u2019s motion for judgment of nonsuit.\nThe rules for testing the sufficiency of the evidence to withstand a motion for nonsuit need not be repeated. Reference is made to Lewis v. Barnhill, 267 N.C. 457, 461, 148 S.E. 2d 536, 540, and cases cited.\nBarry\u2019s testimony tended to show the Ford was struck by de--fendant\u2019s car in the manner stated below when, at a speed of about ten miles per hour, Barry was beginning to make a right turn into said private driveway and that, for a distance of 125 feet, he had given a signal of his intention to make such right turn. There was no evidence, as distinguished from defendant\u2019s allegations, to the contrary. There was ample evidence to support a finding as to defendant\u2019s actionable negligence.\nDefendant contends nonsuit was proper on either of two grounds, namely, (1) that there is a fatal variance between plaintiff\u2019s allegations and proof, and (2) that plaintiff\u2019s evidence discloses that Barry, plaintiff\u2019s agent, was contributorily negligent'as a matter of law.\nDefendant contends the evidence is at variance with plaintiff\u2019s allegation that defendant \u201cdrove his automobile into the right rear and right side\u201d of plaintiff\u2019s Ford. There was evidence tending to show the Ford \u201cwas damaged on the right side and to the rear\u201d and that the Oldsmobile \u201cwas damaged to the left side and to the front\u201d; that the Oldsmobile knocked the Ford \u201cslantwise\u201d; that the Oldsmobile, passing to the right of the Ford, crossed the entrance to the private driveway and stopped some 10-20 feet north of said driveway, partly in the ditch on the east side of said road; and that the Ford, after the collision, was in the road, wholly or partially in the lane for northbound traffic, in front of the entrance to said private driveway.\nPlaintiff\u2019s allegation must \u201cbe liberally construed with a view to substantial justice between the parties.\u201d G.S. 1-151. Moreover, variance, if any, between plaintiff\u2019s allegation and proof cannot \u201cbe deemed material, unless it has actually misled defendant to his prejudice.\u201d G.S. 1-168. It would be unreasonably restrictive to interpret plaintiff\u2019s allegation as an allegation that the front of defendant\u2019s car was driven directly against the rear of plaintiff\u2019s Ford. Suffice to say, we perceive no material variance between plaintiff\u2019s allegation and her proof. In this connection, see Dennis v. Albemarle, 242 N.C. 263, 269-270, 87 S.E. 2d 561, 567; Wilson v. Bright, 255 N.C. 329, 121 S.E. 2d 601; 4 Strong, N.C. Index, Trial \u00a7 26.\nWith reference to the alleged (contributory) negligence of Barry: Barry testified that, looking south from the entrance to said private driveway, one could see a car for a distance of 300 feet; that, when he was 125 feet south of the private driveway and began to signal for his. right-hand turn, he looked back and saw that no car was approaching from the rear; that defendant came up behind him; and that, when he (Barry) was \u201ca car length from the driveway,\u201d he saw defendant\u2019s car, the right side of which was \u201con the shoulder.\u201d\nDefendant contends Barry, in attempting to make a right-hand turn, failed to approach the intersection of said road and said private driveway \u201cin the lane for traffic nearest to the right-hand side of the highway,\u201d and in so doing violated G.S. 20-153. The evi dence, as distinguished from defendant\u2019s allegations, is insufficient to constitute a basis for this contention.\nDefendant contends Barry was contributorily negligent in that, in violation of G.S. 20-154, he attempted to make a right-hand turn from a direct line without first seeing that such movement could be made in safety. Barry, in making such right-hand turn, was not crossing the line of travel of a vehicle that was either meeting or overtaking him. It was for the jury to determine whether he should have reasonably anticipated that the operation of any other vehicle might be affected by such movement. In Cowan v. Transfer Co. and Carr v. Transfer Co., 262 N.C. 550, 138 S.E. 2d 228, Moore, J., speaking for the Court, said: \u201cWhether, under such circumstances, he could reasonably assume that he could make the movement in safety is a question for the jury. A motorist is not required to ascertain that a turning motion is absolutely free from daliger. Lemons v. Vaughn, 255 N.C. 186, 120 S.E. 2d 527; White v. Lacey, 245 N.C. 364, 96 S.E. 2d 1.\u201d In Cowan-Carr, it was contended that Carr, operating Cowan\u2019s truck, made \u00e1 left turn across the path of defendants\u2019 overtaking tractor-trailer without first ascertaining that such movement could be made in safety. Here (as in Cowan-Carr) the evidence,' when considered in the light most\u2019 favorable to plaintiff, does not establish contributory negligence as a matter of law.\nIt is unnecessary to review the evidence in greater detail. Suffice to say, the conclusion reached is that the evidence was sufficient to require submission to the jury on the issues raised by the pleadings. According to defendant\u2019s allegations, plaintiff\u2019s car was operated by Barry in a manner entirely different from that described in plaintiff\u2019s evidence. Defendant will have opportunity to offer evidence to support these allegations. The judgment of nonsuit is reversed.\nReversed.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Ramsey & Long for plaintiff appellant.", "Charles B. Wood for defendant appellee." ], "corrections": "", "head_matter": "MATTIE LEE KIDD v. CHESTLY (NONE) BURTON.\n(Filed 20 January, 1967.)\n1. Automobiles \u00a7 41f\u2014\nPlaintiffs evidence to the effect that her car was being driven at a speed of about 10 miles per hour, that the driver gave the signal for a right turn for some 125 feet before attempting to make a right turn into a driveway, and that defendant, operating a following automobile, struck the right side and rear of plaintiff\u2019s car, held sufficient to be submitted to the jury on the issue of defendant\u2019s negligence.\n2. Trial \u00a7 26\u2014\nAllegations that defendant drove his automobile into the right side and rear of plaintiff\u2019s vehicle, with evidence that defendant struck plaintiff\u2019s vehicle as plaintiff\u2019s vehicle was making a right turn from the highway into a private driveway, that plaintiff\u2019s vehicle was damaged on its right side and rear and that defendant\u2019s vehicle was damaged on the left side and front, held not to disclose material variance between allegation and proof, since plaintiff\u2019s allegation, liberally construed, cannot be restricted to allegation that defendant\u2019s car was driven directly against the rear of plaintiff\u2019s car.\n3. Automobiles \u00a7 10\u2014\nA motorist is not precluded from making a turn unless such movement is absolutely free from danger, and whether a motorist making a right turn from a highway into a private driveway could reasonably assume he could make such movement in safety, after having given proper signal of his intention to turn, is ordinarily a question for the jury in an action involving collision between the turning vehicle and a following car.\n4. Automobiles \u00a7 42h\u2014 Evidence held not to disclose contributory negligence as matter of law in turning right into driveway.\nPlaintiff\u2019s evidence to the effect that the driver of her car made a right turn from the highway into a private driveway and that her vehicle was struck by defendant\u2019s following car, without evidence that the driver of her car failed to make such turn from the righthand side of the highway, G.S. 20-153, and that the driver of her car looked to his rear and gave the statutory signal before making the turn, is held not to disclose contributory negligence as a matter of law on the part of plaintiff\u2019s driver, plaintiff\u2019s driver not having grossed the line of travel of a vehicle either meeting or overtaking him, and whether he could reasonably assume he could make the turn in safety being a question for the jury under the circumstances disclosed by plaintiff\u2019s evidence.\nAppeal by plaintiff from Braswell, J., February 14, 1966 Civil Session of Person.\nTort action to recover for damage ($750.00) to property resulting from a collision of automobiles.\nOn July 5, 1965, at approximately 12:30 p.m., a Ford Mustang owned by plaintiff and operated by her son, Barry Kidd, and an Oldsmobile, owned and operated by defendant, were proceeding in a northerly direction along Rural Paved Road No. 1721 (Moriah Road). A private driveway extended east from said road to plaintiff\u2019s home. West of said road, across from said private driveway, was a service station operated by Barry\u2019s father.\nPlaintiff alleged in substance, except when quoted, the following: Barry \u201cgave a signal indicating his intention of making a right-hand turn into said private driveway.\u201d Defendant drove his car \u201cinto the right rear and right side\u201d of plaintiff\u2019s car. The collision and damage to plaintiff\u2019s car were caused solely by the negligence of defendant in that defendant: Did not keep a proper lookout; drove recklessly; followed plaintiff\u2019s car too closely; failed to keep his car under proper control; operated his car while under the influence of intoxicating liquor; and failed \u201cto regard the right-hand turn signal of the plaintiff\u2019s agent.\u201d\nDefendant, in his answer proper, denied all allegations as to his negligence. For a further answer and defense, defendant alleged in substance, except when quoted, the following: As defendant approached the location of said service station and private driveway, Barry, traveling in his left lane, passed defendant\u2019s car and was headed toward the entrance to said service station; and that Barry, \u201cwithout giving a turn signal of any description, pulled his car from the left lane of travel into an abrupt right-hand turn toward the entrance to his home and, in so doing, abruptly placed his vehicle directly across the lane of travel being followed by the defendant who had neither time nor opportunity to avoid colliding with the plaintiff\u2019s vehicle.\u201d Defendant alleged Barry was negligent in that he failed to exercise due care and caution; failed to keep a proper lookout; attempted to make a right-hand turn in front of following traffic without signaling his intention to do so and without ascertaining that he could do so in safety; and attempted to make a right-hand turn from his left-hand lane of travel. Defendant alleged such negligence of Barry, as agent of plaintiff, was the sole proximate cause, or at least a contributing proximate cause, of the collision and resulting damage.\nAt the conclusion of plaintiff\u2019s evidence, the only evidence, the court, allowing defendant\u2019s motion therefor, entered judgment of nonsuit. Plaintiff excepted and appealed.\nRamsey & Long for plaintiff appellant.\nCharles B. Wood for defendant appellee." }, "file_name": "0267-01", "first_page_order": 299, "last_page_order": 303 }