Regardless of statutes regulating the operation of automobiles, it was the duty of Mrs. Thomas in the operation of her automobile to exercise the care which a person of ordinary prudence would exercise under similar conditions to prevent injury to persons on the highway: that is, it was her duty in keeping a proper lookout to see and take notice of the signs advising her that the portion of the highway on which she was about to enter had men working on or near it, to blow her horn giving notice of her approach or attempt to pass the place where work was going on to any workman crossing the road apparently oblivious of her approach, and to drive at such a speed, and at all times to have her automobile under such control in view of the situation, as to avoid injuring such a workman. Henderson v. Henderson, 239 N.C. 487 80 S.E.2d 383; Williams v. Henderson, 230 N.C. 707, 55 S.E.2d 462, Wall v. Bain, supra; Murray v. R. R., 218 N.C. 392, 401, 11 S.E.2d 326; 5 Am. Jur., Automobiles, sec. 194; 60 C.S.J., Motor Vehicles, pp. 956-957, and sec. 288; Blashfield Cyclopedia of Automobile Law and Practice, Vol. 2A, sec. 1571; 47 A.L.R. 807-808; Anno. 5 A.L.R.2d pp 761-764. G.S. 20-174 (e) requires every driver of a motor vehicle to give warning to pedestrians upon any roadway by sounding the horn when necessary.
id., 195 F.2d at pages 51-52. To the same effect are two cases, Havens v. Havens, 1954, 266 Wis. 282, 63 N.W.2d 86, and Henderson v. Henderson, 1954, 239 N.C. 487, 80 S.E.2d 383, cited by the district court in its memorandum in support of its holding that defendant's driver in this case was confronted with an emergency situation without sufficient time to deliberate and determine the best course for him to take. As the district court pointed out, what hindsight may now indicate as the right action was not necessarily what a reasonably careful and prudent driver would do in an emergency.
To establish actionable negligence plaintiff must show that there has been a failure to exercise proper care in the performance of some legal duty owed by one to another in the circumstances of the case, and that the breach of such duty was a proximate cause of the accident and injury; that is, a cause that produced the result in continuous sequence and without which it would not have happened, and one from which a person of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed. Jones v. C. B. Atkins Co., 259 N.C. 655, 131 S.E.2d 371; Johns v. Day, 257 N.C. 751, 127 S.E.2d 543; Heuay v. Halifax Const. Co., 254 N.C. 252, 118 S.E.2d 615; Henderson v. Henderson, 239 N.C. 487, 80 S.E.2d 383, 385. From the credible evidence in this case there is no doubt that the driver of the Buick automobile was guilty of negligence which was a proximate cause of the accident.
Although this would support an inference of negligence in driving on the wrong side of the highway, there are other equally valid inferences consistent with absence of negligence on the part of the deceased. The force of the impact which was primarily on the right front of deceased's vehicle could have knocked his vehicle across the center line. Deceased may have been taking evasive action such as a person of ordinary prudence would have taken under similar circumstances to avoid a collision, as the law requires a driver to do. Forgy v. Schwartz, 262 N.C. 185, 136 S.E.2d 668; Henderson v. Henderson, 239 N.C. 487, 80 S.E.2d 383. "Nonsuit on the ground of contributory negligence should be allowed only when the plaintiff's evidence, taken in the light most favorable to him, so clearly establishes this defense that no other reasonable inference or conclusion can be drawn therefrom."
The plaintiff was entitled to have the jury pass on the question whether the evidence showed the defendant, in any of the particulars alleged, had breached a legal duty which he owed to the plaintiff, and if so, whether such breach proximately caused her injury and damage. Henderson v. Henderson, 239 N.C. 487, 80 S.E.2d 383; Aldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331; Ervin v. Mills Co., 233 N.C. 415, 64 S.E.2d 431. For additional cases, see Strong's North Carolina Index, Vol. 1, p. 232, n. 49."
"(N)egligence. . . involves more than being at a particular place at a particular time." Bobbitt, J., in Henderson v. Henderson, 239 N.C. 487, 492, 80 S.E.2d 383, 386. The judgment of nonsuit is
A motorist, although in his proper lane, has the duty to avoid colliding with another vehicle which comes into his path from the opposite direction if he can do so in the exercise of due care. From the time the motorist sees, or in the exercise of ordinary care should see, that the approaching driver cannot or will not return to his side of the road, it is encumbent upon him to exercise due diligence under the conditions then existing to prevent an accident. Henderson v. Henderson, 239 N.C. 487, 80 S.E.2d 383. When possible, it is his duty to slow down, turn from a direct line, drive off the highway, stop, or take such other evasive action as a person of ordinary prudence would take under similar circumstances to avoid a collision. If he neglects to do so, and such failure is a contributing cause of the resulting collision, he is liable as a joint tort feasor to those who are injured as a consequence of his negligence.
The presence of the Copple and Warner cars in the (right) land for eastbound travel on No. 62 must be regarded as a circumstance of the accident and not its proximate cause. Lee v. Upholstery Co., 227 N.C. 88, 90, 40 S.E.2d 688, and cases cited; Henderson v. Henderson, 239 N.C. 487, 792, 80 S.E.2d 383. Warner's demurrer should have been sustained on the ground the complaint as to Warner did not allege facts sufficient to constitute a cause of action, thereby eliminating the question as to the misjoinder of parties and causes of action. The courts order does not indicate the ground on which Warner's demurrer was sustained.
Regardless of statutes regulating the operation of automobiles, it was the duty of Mrs. Bissette in the operation of the automobile to exercise the care which a person of ordinary prudence would exercise under similar conditions to prevent injury to the occupants of the automobile she was driving, and to other vehicles or persons on the highway. Funeral Service v. Coach Lines, 248 N.C. 146, 102 S.E.2d 816; Kellogg v. Thomas, 244 N.C. 722, 94 S.E.2d 903; Henderson v. Henderson, 239 N.C. 487, 80 S.E.2d 383. Plaintiff's evidence would permit a jury to find that Mrs. Bissette tried two or three times to overtake and pass the pickup truck traveling ahead of her, but could not do so because the truck ahead "was making little doodles in the road, cross the center line" in front of her; that wish such knowledge of the dangerous operation of the truck ahead she again attempted to overtake and pass the truck ahead without giving any warning signal of her intention to do so, until her automobile and the truck were side by side and the truck was coming across the center line into her lane of passing; that then Mrs. Bissette to avoid a collision turned her automobile to the left onto the dirt shoulder, lost control of it, and it ran down an embankment and crashed into a tree some 215 feet from the pavement on the highway; that such operation of the automobile by Mrs. Bissette constituted a violation of G.S. 20-149 (b) and G.S. 20-140 (b), and also a failure to exercise the care which a person of
The street was wet, it was raining, and a car driven by a woman with two small children as passengers, suddenly and without warning turned into Hallman's lane of travel only 20 feet ahead of him. "One who is required to act in an emergency is not held by law to the wisest choice of conduct, but only to such choice as a person of ordinary care and prudence, similarly situated, would have made." Ingle v. Cassady, 208 N.C. 497, 181 S.E. 562; Ingram v. Smoky Mountain Stages, 225 N.C. 444, 35 S.E.2d 337; Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251; Powell v. Lloyd, 234 N.C. 481, 67 S.E.2d 664; Henderson v. Henderson, 239 N.C. 487, 80 S.E.2d 383; Cockman v. Powers, 248 N.C. 403, 103 S.E.2d 710; 38 Am. Jur., Negligence, section 41, page 687; 65 C.J.S., Negligence, section 17, page 408. There is no evidence on this record tending to show that the choice made by Hallman in his effort to avoid a collision with the Pontiac was not such choice as a person of ordinary care and prudence would have made under similar circumstances.