MARSHALL KEITH v. HENRY G. KING and Wife, MARIE JONES KING. and HENRY G. KING v. PHILLIP MARSHALL KEITH, 263 N.C. 118

HiggiNS, J. The critical question in this case is whose negligence caused the collision. After explaining the respective duties of motorists at an intersection between a dominant and a servient highway, the court defined an intersection as “the area embraced within the prolongation (of) the lateral boundary lines of the highways.” The court charged: “Now, members of the jury, it is admitted that the collision in question occurred at an intersection, that is, the intersection of Honeysuckle Lane and the old Wake Forest Road.” Of course, under ordinary conditions, Mr.

Keith had the right of way at the intersection, he being on the dominant road. G.S. 20-158(a); Primm v. King, 249 N.C. 228, 106 S.E. 2d 223. But Mrs. King and her witnesses testified the collision occurred not at the intersection but some 100 to 130 feet down the highway towards Raleigh after she had cleared the intersection. According to all the evidence, she was in her own traffic lane at the time the Keith Pontiac skidded into the side of the vehicle she was driving.

At no time, according to the record, did the Kings stipulate or admit the collision occurred at the intersection where ordinarily the Pontiac would have had the right of way. Inadvertently, the court placed the accident at the intersection where the rules of the road gave Mr. Keith the advantage and removed it from the place where the Kings’ evidence tended to show it occurred, where the rules favored Mrs. King.

In charging the jury that the parties admitted the collision occurred at the intersection, the court took from the Kings the benefit of their evidence that it occured after she had entered and passed the intersection. The instruction was prejudicial error. New trial.