On certiorari to review judgment of Bailey, J., entered at the 16 October 1978 Session of Wake Superior Court.
Britt, Justice. Justice Brock did not participate in the consideration or decision of this case. Justice Huskins dissenting.
Plaintiff instituted this action seeking reimbursement from defendant of the sum of $9,581.25 which plaintiff had paid to Charles E. McDonald (McDonald) in settlement for personal injuries and property damage sustained by McDonald in a collision with an automobile insured by a policy of insurance issued by plaintiff to Mr. and Mrs. David Earl Williams. Plaintiff's allegations are summarized as follows:
On 30 January 1971 Mrs. Williams allowed her minor son David to use her 1965 Mustang automobile which was insured by the policy referred to above. David, in turn, gave defendant, who was then 16 years old, permission to use the car. While in lawful possession of the Williams car, defendant negligently operated the same and caused a collision with an automobile operated by McDonald. Defendant's negligence was the proximate cause of serious personal injuries and substantial property damage suffered by McDonald. Plaintiff thereafter notified defendant that it was reserving all rights and defenses under the provisions of the Williams policy, but, nonetheless, under its reservation of rights and at the request of defendant, proceeded in good faith to settle the McDonald claim against defendant for the sum of $9,581.25. As a result of this settlement, plaintiff obtained a release which forever discharged defendant from any further liability to McDonald. Defendant was in lawful possession of the insured automobile. Therefore, plaintiff was required by the terms of G.S. 20-279.21(b) to extend coverage to defendant. Plaintiff is entitled to reimbursement from defendant pursuant to the provisions of G.S. 20-279.21(h) and the policy.
In his answer, the defendant admitted that while he was in lawful possession of the insured vehicle, he was involved in an accident with McDonald, and that McDonald suffered personal injuries and property damage in the collision. He further alleged that plaintiff was obligated to extend protection to him. He denied that the collision was caused by his negligence and that he was liable to plaintiff in any amount.
Plaintiff's evidence pertinent to this appeal tended to show: that the collision occurred during daylight hours on North Boulevard in the City of Raleigh at or near the bridge which carries boulevard traffic over Peace Street; that it was raining at the time; that North Boulevard at that point had three lanes for southbound traffic and three lanes for northbound traffic; that McDonald was traveling south on the inside lane; that defendant was traveling north; that the Mustang defendant was driving left the northbound lanes, went across a concrete median eight inches high into the southbound lanes and hit McDonald's car head on; and that the tires on the Mustang were slick.
Evidence favorable to defendant tended to show: Shortly before the collision, he drove onto the parking lot of a small shopping
center located on the east side of North Boulevard and a short distance south of Peace Street. It was raining. Before reentering the boulevard, defendant came to a complete stop at the north entrance of the shopping center parking lot. He then drove onto the boulevard, proceeding north. As he entered the bridge at about 25 m.p.h., the car went out of control into a spin, crossed the median into the southbound lane and collided with the McDonald car. A new coat of asphalt had been recently applied on the bridge. At the time defendant entered the bridge, it was covered with water. The speed limit at said point was 45 m.p.h.
Prior to trial defendant stipulated that on the date in question, while driving the Mustang north on Downtown Boulevard during a rainstorm, he left the northbound lane, crossed over into the southbound lanes and collided with McDonald's car which was traveling south.
For further elaboration on the evidence and the contentions of the parties, see the opinions of this court and the Court of Appeals cited above. While numerous questions were addressed in the prior appeals, the questions pertinent to this appeal are very limited and only they are discussed here.
In the first two assignments of error brought forward and discussed in its brief, plaintiff contends the trial court erred (1) in refusing to strike the opinion testimony of defendant relative to the speed of the automobile he was driving, and (2) in denying plaintiff's motion for directed verdict on the issues. We find no merit in ...