JAMES LOUIS COWAN v. MURROWS TRANSFER, INC. and ROGER DALE BUCHANAN; and ROBERT LEE CARR v. MURROWS TRANSFER, INC. and ROGER DALE BUCHANAN, 262 N.C. 550

Moobe, J. Defendants assign as error the denial of their motions for nonsuit.

From the evidence favorable to plaintiffs the jury could infer that defendant Buchanan was inattentive to Carr’s left turn signal given continuously for 500 feet, was inattentive to the turning movements of the milk truck which were begun when the tractor-trailer was at least 300 feet away, continued forward at a speed of at least 40 miles per hour when the milk truck had greatly reduced speed in turning, and attempted to pass without giving audible warning of his intention to do so when he should have observed that'the milk truck was in the act of making a left turn, and such negligence (with respect to lookout, speed, control and lack of warning, as alleged by plaintiffs) was a proximate cause of the collision.

Defendants contend however that the plaintiffs were contributorily negligent as a matter of law. This contention is based on plaintiff Carr’s testimony that he looked in his rear-view mirror when 40 feet from the driveway and “never looked back again.” It is insisted that Carr’s failure to continue his lookout violates G.S. 20-154(

a) which provides that “the driver of any vehicle upon a public highway before . . . toning from a direct line shall first see that such movement can be made in safety ...” A violation of this provision is negligence per se. Mitchell v. White, 256 N.C. 437, 124 S.E. 2d 137; Grimm v. Watson, 233 N.C. 65, 62 S.E. 2d 538. We held in Tallent v. Talbert, 249 N.C. 149, 105 S.E. 2d 426, that failure to look during the last 90 feet before turning constituted contributory negligence as a matter of law. See also Badders v. Lassiter, 240 N.C. 413, 82 S.E. 2d 357; Gasperson v. Rice, 240 N.C. 660, 83 S.E. 2d 665.

Nonsuit may not be granted on the ground of contributory negligence unless plaintiff’s own evidence establishes this defense as the sole reasonable conclusion. In our opinion it is debatable whether Carr’s failure to look again constitutes a violation of G.S. 20-154 (

a) as a matter of law on this record. He testified in effect that he looked when he was ready to begin his turning movement and observed that the tractor-trailer was then at least 300 feet to the rear. Whether, 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 danger. Lemons v. Vaughn, 255 N.C. 186, 120 S.E. 2d 527; White v. Lacey, 245 N.C. 364, 96 S.E. 2d 1. The motion for nonsuit was properly overruled.

Defendants also contend that the trial judge committed prejudicial error in failing to give the jury adequate instructions with respect to G.S. 20-149 (b). As originally written this statute provided that “The driver of an overtaking motor vehicle not within a business or residence district . . . shall give audible warning with his horn or other warning device before passing or attempting to pass a vehicle proceeding in the same direction.” A violation of this provision was formerly regarded as negligence per se. Lyerly v. Griffin, 237 N.C. 686, 75 S.E. 2d 730.

In 1959 the Legislature placed a comma at the end of the foregoing provision and added the following: “but his failure to do so shall not constitute negligence or contributory negligence per se in any civil action; although the same may be considered with other facts in the case in determining whether the driver of the overtaking vehicle was guilty of negligence or contributory negligence.” See Boykin v. Bissette, 260 N.C. 295, 132 S.E. 2d 616.

Defendants say that the charge does not give them the benefit of the 1959 amendment and does not explain the meaning of the clause, “shall not constitute negligence . . . per se.” It is the generally accepted view that the violation of a statute enacted for the safety and protection of the public constitutes negligence per se, i. e., negligence as a matter of law. The statute prescribes the standard, and the standard fixed by the statute is absolute. The common law rule of ordinary care does not- apply — proof of the breach of the statute is proof of negligence.

The violator is liable if injury or damage results, irrespective of how careful or prudent he has been in other respects. No person is at liberty to adopt other methods and precautions which in his opinion are equally or more efficacious to avoid injury. But causal connection between the violation and the injury or damage sustained must be shown; that is to say, proximate cause must be established.

In short, where a statute or municipal ordinance imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty, he is liable to those for whose protection or benefit it was imposed for any injuries or damage of the character which the statute or ordinance was designed to prevent, and which was proximately produced by such neglect, provided the injured party is free from contributory negligence. Aldridge v. Hasty, 240 N.C. 353, 82 S.E. 2d 311; 38 Am. Jur., Negligence, § 158, pp. 827-829; 65 C.J.S., Negligence, § 19, pp. 418-420.

Where, as in G.S. 20449(b), a violation is declared not to be negligence per se, the common law rule of ordinary care applies, and a violation is only evidence to be considered with other facts and circumstances in determining whether the violator used due care. The distinction, between a violation of a statute or ordinance which is negligence per se and a violation which is not, is one of duty. In the former the düty is to obey the statute, in the latter the duty is due care under the circumstances.

In both instances other facts and circumstances are to be considered on the question of proximate cause; in the latter, other facts and circumstances are to be considered also on the question of negligence. In practical effect the real distinction is not so great as seems apparent from the

definitions. Defendants specifically call in question the following portions of the charge: “Now, the duty that this particular statute [G.S. 20-149 (b) ] places on a motorist is not merely to blow his horn in the act of passing, but it is to blow a horn as a reasonable person would do in the act of passing. The duty imposed by the statute upon the driver of the overtaking vehicle to sound his horn before attempting to pass must be regarded as requiring that warning be given to the driver of the vehicle being overtaken in reasonable time to avoid the injury which would likely result from a left turn.

So you can see that, as you will be seeing throughout here, that the, that it boils down to a duty to use reasonable care. “The horn must be blown in reasonable time to serve the purpose for which a horn is normally blown in a passing situation.” These instructions with reference to timely giving of an audible warning are in accord with our decisions. Boykin v. Bissette, supra; Sheldon v. Childers, 240 N.C. 449, 82 S.E. 2d 396. The 1959 amendment of G.S. 20-149 (

b) does not mean that an overtaking and passing motorist is relieved of all duty to give audible warning; it simply means that a failure to give such warning may or may not constitute a want of due care, depending upon the circumstances of the particular case. The judge did not instruct the jury that defendant’s failure to give audible warning was negligence per se. On the other hand, he did not read the statute to the jury, nor state in totidem verbis that failure to give audible warning is not negligence per se. To have done so would have had little, if any, meaning for the jury.

The judge is not required to read to the jury the technical language of statutes; a plain and simple application of the principles involved is preferable. Pittman v. Swanson, 255 N.C. 681, 122 S.E. 2d 814; Chambers v. Allen, 233 N.C. 195, 63 S.E. 2d 212. It is clear from a consideration of the charge as a whole that the jury was told that defendant’s duty was reasonable care under the circumstances.

Moreover, it appears that defendants were not contending that no audible warning was required under the circumstances, but that because of an emergency created by plaintiff’s negligence defendant Buchanan was suddenly required to make a choice between blowing his horn and attempting to control his vehicle. The charge with respect to G.S. 20-149 (

b) dealt mainly with this theory of the matter. It is our opinion that the errors, if any, in the court’s instructions are not sufficiently prejudicial to require a new trial. No error.