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Smith v. Millie Leggett Stocks

Filed: November 3, 1981.

RICKY NELSON SMITH
v.
MILLIE LEGGETT STOCKS



Appeal by plaintiff from Long, Judge. Judgment entered 13 October 1980 in District Court, Bertie County. Heard in the Court of Appeals 15 October 1981.

Martin (Harry C.), Judge. Judges Hedrick and Clark concur.

Martin

I.

Plaintiff first assigns as error the trial court's denial of his motions for a directed verdict and for judgment n.o.v. and in the alternative for a new trial on defendant's counterclaim. He alleges that defendant's evidence showed no actionable negligence on his part and, as a matter of law, showed defendant's contributory negligence. We will deal with each allegation separately.

On the issue of plaintiff's negligence, the court instructed that, if shown by the greater weight of the evidence, plaintiff could be found negligent (1) in the operation of his truck on a public highway and in operating his truck at a dangerous and unlawful rate of speed which was greater than was reasonably prudent under the conditions, and (2) in failing to keep his truck under control.

In determining the sufficiency of the evidence to withstand this plaintiff's motions for directed verdict and judgment n.o.v., all the evidence which supports the defendant's counterclaim must be taken as true and considered in the light most favorable to her, giving her the benefit of every reasonable inference which may legitimately be drawn therefrom, and resolving contradictions, conflicts and inconsistencies in her favor. See Love v. Pressley, 34 N.C. App. 503, 239 S.E.2d 574 (1977), disc. rev. denied, 294 N.C. 441 (1978). Based on the testimony given at trial, we find that defendant offered sufficient evidence to support her counterclaim of actionable negligence against plaintiff.

The laws of this state, both statutory and from our cases, impose upon motorists driving on either dominant or servient highways certain duties when approaching, entering, or traversing

intersections. Each driver is required to exercise ordinary care under the particular circumstances in which he finds himself. Failure to do so can constitute negligence when injury results. Murrell v. Jennings, 15 N.C. App. 658, 190 S.E.2d 686 (1972).

Defendant's evidence tended to show that she complied with N.C.G.S. 20-158(a) in that she came to a full stop upon reaching the intersection of U.S. 13 and U.S. 308; that she looked to her left and to her right; that she determined that it was safe to proceed across the intersection; that plaintiff's truck was either not in sight or not close enough to constitute a hazard; and that after she crossed the median of U.S. 13 and entered the fourth lane of traffic, plaintiff struck her car. Under these circumstances, plaintiff had a duty to yield the right of way to defendant's vehicle, already in the intersection. Todd v. Shipman, 12 N.C. App. 650, 184 S.E.2d 403 (1971)*fn1; Farmer v. Reynolds, 4 N.C. App. 554, 167 S.E.2d 480, cert. denied, 275 N.C. 499 (1969).

Finally, with respect to plaintiff's duty under the circumstances of this case, we quote from Blalock v. Hart, 239 N.C. 475, 479-80, 80 S.E.2d 373, 377 (1954):

However, the driver on a favored highway protected by a statutory stop sign (G.S. 20-158) does not have the absolute right of way in the sense he is not bound to exercise care toward traffic approaching on an intersecting unfavored highway. It is his duty, notwithstanding his favored position, to observe ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. In the exercise of such duty it is incumbent upon him in approaching and traversing such an intersection (1) to drive at a speed no greater than is reasonable and prudent under the conditions then existing, (2) to keep his motor vehicle under control, (3) to keep a reasonably careful lookout, and (4) to take such action as an ordinarily ...


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