BARNHILL, J., dissenting.

STACY, C. J., and WINBORNE, J., concur in dissent.

As the result of an automobile collision, separate suits were brought by the four plaintiffs against the defendant, all claiming personal injury and damage sustained through defendant's negligence, and the plaintiff, J. T. Swinson, claiming, in addition, damages for injury to his car. For purposes of trial the four suits were consolidated, without objection, and tried. Issues relating to negligence, contributory negligence and damages in each case, were submitted to the jury and answered in favor of all the plaintiffs, respectively, and defendant appealed.

Under appropriate pleadings evidence was introduced by plaintiffs and defendant which, as pertinent to this appeal, is substantially as follows:

J. T. Swinson testified that he was driving an automobile on Sprague Street in the city of Winston-Salem at the time of the collision, in which Aaron Swinson, Mrs. Althea Swinson and Mrs. Ruth Swinson were passengers. They were taking Mrs. A. J. Swinson to the Baptist Hospital for an examination. The witness and his wife were in the front seat and the brother and his wife in the rear seat, the brother on the right.

Sprague Street runs east and west and Main Street runs north and south. Sprague Street is about 40 feet wide and Main Street 38 feet wide. Approaching and intending to cross the intersection of Main Street, witness says he slowed down to about 10 miles an hour, looking both ways. He could see to the right about 200 feet, and saw no one approaching. According to his testimony, when he got about midway of the street he saw a car approaching. It collided with witness' car about the curb line — or what would be the curb line if extended — on the west side of the street, striking his car about the middle. The car turned over twice and landed on the opposite side of the street, about 40 feet away, headed in a direction opposite to that they were traveling.

Continuing his testimony, approaching Main Street there were obstructions consisting of shrubbery, a house on a bank which was about four feet from the road, and maple trees along the side. The view of the stop sign was obstructed. It was about 12 to 20 feet from the entrance into Main Street where witness could first see to his right. Witness saw a stop sign that afternoon "about halfway between the sidewalk and the road" in front of the house. The sign post is to the left of the road, the sign part six feet from the ground. It was yellow. Witness' view of Main Street was obscured by a hedge of evergreen trees, some as high as his head. Witness saw defendant when he was about 30 feet away, and believes he was making 70 miles an hour, says Nance applied brakes and was going about 30 miles an hour when the cars collided; says Nance told him he could not stop — that if he had turned to the left he would have turned over, and if he turned to the right he would have hit a post, so he had to hit the Swinson car "center." Other testimony relates to the injuries received in the collision.

On cross-examination, several exceptions were taken to the exclusion of evidence from this witness relating to his conviction on a criminal charge of reckless driving growing out of this transaction.

A. J. Swinson testified that his brother came to "a slow stop" before entering Main Street, or very nearly stopped, and looked to the right, then released his brakes. He testified the Nance car was coming at a rate of 60 or 70 miles an hour. He further testified as to his injuries. On cross-examination, he testified that he wanted to take his wife to the hospital for examination and his brother volunteered to take them; testified the stop sign was not where it could be seen.

Mrs. A. J. Swinson testified that she looked to the right on going into Main Street and could not see anyone approaching. She gave evidence tending to corroborate other witnesses as to the circumstances of the collision.

Pertinent evidence for the defense contradicted that of plaintiff in important particulars.

The defendant, E. E. Nance, testified that side streets across Main Street all had stop signs except those that had stop lights. He was going, he testified, south down Main Street toward Lexington, and when he approached Sprague Street, just before he got to the street he saw a car coming down Sprague Street making 50 or 60 miles an hour. Witness expected him to stop, but he did not. He ran in front of witness' automobile and they collided. There was a stop sign on each side of the street, consisting of a disc 24 inches across, containing the word "Stop." Witness was traveling about 25 or 30 miles an hour and applied brakes when he saw the car was not going to stop. Witness thinks he was in the intersection first. The collision occurred when witness was about 8 or 9 feet within the intersection. The Swinson car had already passed the stop sign when witness saw it. Witness denied that he had told J. T. Swinson that witness was going too fast to stop.

On cross-examination, witness stated that he was going about 10 or 12 miles an hour at the time of the collision. Swinson's car was about 15 feet from the intersection when he saw it — between 30 and 40 feet away. Witness was not looking in that direction; didn't know which car got to the intersection first. Witness doesn't know why his car hit the Swinson car right in the side.

Defendant introduced ordinances of the city of Winston-Salem designating Main Street as a "through highway" and making it unlawful to enter such highway from an intersecting street without stopping, where there is a stop sign.

Dorothy Jones testified for the defense as to the visibility of the stop sign.

Mrs. Belle Heath testified that she saw the Swinson car approaching at a rapid rate of speed and exclaimed to her sister, "Gosh, why don't they slow up!" This evidence as to what she said to her sister was stricken out and defendant excepted. She estimated the speed of the car as from 40 to 45 miles per hour.

Mrs. E. M. Johnson testified that the Swinson car was going 40 to 45 miles an hour and did not check up speed at all. She also gave evidence as to the visibility of the stop sign.

J. L. Heath testified that just before the collision the Swinson car passed him at a rapid rate of speed, 45 or 50 miles per hour, and made no effort to stop. The Nance car was in the intersection first.

On cross-examination, this witness was questioned as to whether certain statements had been made on a former trial. On redirect examination, several questions were addressed to him as to whether the testimony on that trial was the same as at present. The evidence was excluded and exceptions were taken. Later the plaintiffs introduced the transcript of the evidence of this witness at the former trial in question.

Other evidence relates principally to the injuries sustained in the collision and damage to the Swinson car.

The plaintiff, J. T. Swinson, was recalled. The court excluded an inquiry whether the witness had not been convicted of reckless driving in connection with this collision, and defendant excepted.

The defendant moved for judgment of nonsuit at the conclusion of all the evidence, and the motion was overruled. Defendant excepted.

The defendant made numerous exceptions to the refusal of the court to give instructions requested and to the instructions as given, which will be noted in the opinion where thought material.

In apt time, defendant excepted to refusal to set aside the adverse verdict, and to the signing of the judgment, and appealed.

SEAWELL, J.

The defendant took 39 exceptions to the conduct of the trial, all of which have been brought forward. It will be impossible to give these exceptions individual attention in formulating our opinion, although, of course, they have not been overlooked in our study of the case. We necessarily confine our observations to the more challenging objections.

There are three exception to the exclusion of evidence offered by the defendant which merit attention.

In the testimony of Mrs. Belle Heath, who was an eye-witness to the collision, the following occurred: "Q. What, if anything, did you observe going West on Sprague Street? A. Well, I seen a car going at a rapid rate of speed and I have seen so many wrecks out there I exclaimed to my sister, `Gosh, why don't they slow up!' "

Upon objection by the plaintiffs, a part of this answer was stricken out, the court holding that what the witness said to her sister was incompetent. The defendant contends that this was a spontaneous exclamation, part of the res gestae, which ought to have been admitted. We doubt if the admission of this evidence could be held for error under the decisions of this Court. Young v. Stewart, 191 N.C. 297, 131 S.E. 735, and cited cases. But this does not mean that its exclusion is necessarily error. Some discretion must be conceded to the trial court in the admission of evidence of this sort, 20 Am. Jur., p. 557, sec. 663, especially in marginal cases. We doubt whether the declaration here is so clear in its implication as to qualify under the rule. At any rate, the witness testified fully as to the speed of the Swinson car, and we do not think the defendant was materially prejudiced by its exclusion.

On cross-examination, J. L. Health, witness for defendant, was questioned with regard to statements made by him on a former trial involving facts of the collision. On redirect examination, at the instance of the defendant, he was asked several questions, different in form but identical in purpose, of which the following is typical: "Q. State whether or not your answers in the Winston trial in the Court you spoke of were the same you gave here yesterday?" To all of these questions the witness, if permitted, would have answered "yes." The defendant excepted to the exclusion of this evidence. Later, the plaintiff introduced, without objection, the entire transcript of Heath's evidence at the former trial referred to in these questions.

Ordinarily, when for the purpose of impeachment the testimony of the witness is challenged as contradictory to a former statement, he would be permitted to testify that his former statements were the same as he now made. We doubt whether the questions addressed to the witness were of such particularity as to bring them within the rule, since they had a broadside reference to everything he might have said on the previous occasion. The point loses importance, however, in view of the fact that his testimony had been reduced to writing and the record thereof was before the jury for comparison, a more satisfactory method of corroboration or contradiction as the case might be. We cannot see that the defendant was prejudiced in this connection.

Growing out of the collision, J. T. Swinson, one of the plaintiffs, had been indicted and convicted in the Superior Court of Forsyth County for reckless driving. Near the close of the trial, when plaintiff had been returned to the stand for direct testimony, defendant's counsel, on cross-examination, sought to bring into the evidence the fact that he was so convicted. In the absence of the jury, the following question was addressed to the witness: "Q. I ask you if in the case of State against yourself where, in this testimony that has been referred to by your counsel and this cross-examination of Mr. Heath, you were not convicted by the Court up there of reckless driving?" The witness would have admitted that he had been so convicted. Counsel for the defendant stated that he asked the question solely for the purpose of impeaching the witness. The court observed: "This is not in the presence of the jury. It appears to the court that the case to which the question refers is a criminal indictment based on the wreck or collision involved in this lawsuit; therefore, objection is sustained." To this defendant excepted. The jury returned to the courtroom and, in view of the intimation of the court, the question was not asked. Passing the fact that the question was not renewed when the jury returned, we think its exclusion was proper anyway. If the sole purpose was to impeach the witness by showing that he had been convicted of a criminal offense, the question might have been formulated differently. The question tied the testimony to the transaction then under civil investigation and the effect, if the evidence should be admitted, was to bring before the jury on the question of contributory negligence the fact that the plaintiff had been convicted of careless driving by another jury because of the same act of negligence. The situation is novel as far as we can discover, but we are convinced that the exclusion of the evidence was proper, on this principle ut res magis valeat quam pereat.

Other exceptions in this group, we do not consider meritorious.

The defendant in his assignments of error has grouped a number of exceptions to the refusal to give special instructions to the jury, presented in his request. They fill nearly five mimeographed pages of the record and cover practically all of the important features of the case on which the judge might be expected to charge the jury. Most of these instructions, in so far as they were consistent with the law, were given to the jury independently by the judge according to his own method of formulating his charge. As presented by the defendant, they were refused.

To understand the effect of such refusal, as well as the objections to various parts of the charge as given, we must refer to the type of accident disclosed by the evidence or, rather, the situation which the evidence presents as existing at that time.

(1) The Swinson car was approaching a main thoroughfare along an intersecting road marked with stop signs, the main thoroughfare being regarded as dominant and the road along which the Swinson car was approaching servient. The defendant was proceeding towards the intersection of the dominant highway. Plaintiffs and defendant were thus approaching the intersection simultaneously. (2) The evidence is conflicting with regard to the behavior of J. T. Swinson, the driver on the servient road, and of Nance, the defendant. But there is evidence tending to show that both Swinson and Nance were approaching at a high and unlawful rate of speed, as well as evidence to the contrary in both instances. (An ordinance of the town of Winston-Salem purports to make it unlawful and a criminal offense for one approaching a main thoroughfare at an intersection marked with a stop sign not to stop before entering thereon. The State law, C. S., 2621 [305], provides, under these circumstances: "That no failure so to stop, however, shall be considered contributory negligence per se in any action at law for injury to person or property; but the facts relating to such failure to stop may be considered with the other facts in the case in determining whether the plaintiff in such action was guilty of contributory negligence.") (3) The defendant was the driver and sole occupant of his car. The plaintiffs were four in number, the plaintiff J. T. Swinson driving up to the time of the collision. The question of joint enterprise is raised, with insistence on common responsibility of all the occupants of the car for the negligence of the driver as a legal consequence.

Without analyzing the prayers for special instructions separately, an impossible and unnecessary task as we view it, we may say that, collectively, they are largely based upon what we regard as erroneous conceptions of the law, and assumptions of the truth of undetermined facts, within the province of the jury. The result is that the categories they present do not lead to the conclusions of law which it is desired the Court should adopt. The two more prominent misconceptions of the law presented by the requested instructions may be considered in order. The first relates to the insistence of the defendant that the failure of the plaintiff to obey the stop sign was negligence per se. The view is incorrect, since an ordinance of the town cannot displace the applicable State law, which makes such a failure merely evidence to go to the jury to be considered in the light of the surrounding circumstances. C. S., 2621 (305); Stephens v. Johnson, 215 N.C. 133, 1 S.E.2d 367; Sebastian v. Motor Lines, 213 N.C. 770, 197 S.E. 539.

The other is the view that the defendant, traveling the dominant highway, had an unqualified privilege in the right of way, regardless of his own conduct in approaching and negotiating the intersection.

Right of way is not absolute. Valuable as the principle may be in determining questions of negligence, particularly between participants in a collision, nothing could be more disastrous than to regard it, either in law or in fact, as displacing the predominant duty of due care resting on those who use the streets and highways. The law applicable to this state of facts is stated in Groome v. Davis, 215 N.C. 510, 516, as follows: "The holder of the right of way, even on an arterial highway, does not possess and unqualified privilege in its exercise. The duty still rests on him to use due care in approaching an intersection, notwithstanding he may know that it is protected by a stop sign on the less favored highway; and without the exercise of such care his right of way will not avail him. His right to rely on the assumption that a driver approaching the intersection on the servient road will observe the stop sign is forfeited when he approaches the intersection and attempts to traverse it at an unlawful or excessive speed. And even when he is within the law, it may be necessary for him to surrender his right of way, in the exercise of due care, to avoid the consequences of another's negligence. The principles, thus summarized, are clearly stated in leading texts: Huddy on Automobiles, 9th Ed. 3-4, pp. 228, 263, 264, 277; Berry on Automobiles, 3.2; Babbitt on Motor Vehicles, 4th Ed., 439, 461; and they find expression in numerous well considered opinions of the courts, from which we cite the following as containing a more detailed exposition of the rules under consideration than we find convenient to make here: Sebastian v. Motor Lines, 213 N.C. 770, 197 S.E. 539; Anthony v. Knight, 211 N.C. 637, 191 S.E. 323; McCulley v. Anderson (Neb.), 227 N.W. 321; Richard v. Neault, 126 Maine, 17, 135 A. 524, 525; Brown v. Saunders, 44 Ga. App. 114, 160 S.E. 542; Rosenau v. Peterson, 147 Minn. 95, 179 N.W. 647; Carter v. Vadeboncoeur, 32 Manitoba L. R., 102, 11 B.R. C., 1113; Carlson v. Meusenberger, 200 Iowa 65, 204 N.W. 432; Ray v. Brannon, 196 Ala. 113, 72 So. 16."

It was the duty of the defendant, notwithstanding his right of way, to observe due care in approaching and traversing the intersection and to take such action as an ordinarily prudent person would take in avoiding the collision when the danger was discovered, or by the exercise of reasonable care could have been discovered in time.

Ordinarily it is said that a defense of this kind is available only to one who is himself free from negligence, or, to put it more accurately, of negligence such as might stand in proximate relation to the injury. It is also said that a person may forfeit his right of way by his own negligence. Here, too, it might be better to put it that his right of way is no longer a conclusive factor in considering his behavior. "Simply stated, the right to make the assumption is available only to one who himself is free from negligence. Some States, by express wording of the statute, have rendered such a defense unavailable to negligent drivers; Morris v. Bloomgren, 127 Ohio State, 147, 187 N.E. 2, 89 A.L.R., 831; Wolfe v. Fay Bros. Auto and Taxicab Co., 18 La. App., 321, 138 So. 453; Jordan v. Western Motor Ways, 213 Cal. 606, 2 P.2d 786; and in others the courts have reached the same result by judicial reasoning." Groome v. Davis, supra, p. 516. From the same case, where the facts were similar in outline, we quote: "From the time defendant came into the zone of obligation, and the duty of care with regard to this intersection arose, his acts must be considered as a continuing sequence. The negligence of the defendant, if the jury should find such negligence, might have begun some distance up the road when he surrendered control for speed, finding later he could not retrieve it." See p. 518. The evidence tends to show negligence on the part of defendant in approaching the crossing at a high rate of speed, and perhaps in other respects, and the court had no right to give instructions which assumed the contrary.

Other requested instructions are based on the theory that all of the plaintiffs were engaged in a joint enterprise for their mutual benefit, and, therefore, responsible for the negligence of the driver. The facts do not bring the case within the bounds of that doctrine. Montgomery v. Blades, 218 N.C. 680; Haney v. Lincolnton, 207 N.C. 282, 176 S.E. 573; Smith v. Barnhardt, 202 N.C. 106, 161 S.E. 715; Butner v. Whitlow, 201 N.C. 749, 161 S.E. 389; S. v. Norfolk, etc., R. Co. (Md.), 135 A. 827. Furthermore, since the jury absolved J. T. Swinson, the driver, of negligence, the question is now academic.

Exceptions to the instructions given, for the most part, may be correlated with the contrary view of the law, and significance of the evidence, represented in the prayer for special instructions, since they bear largely on the features of the evidence and of the law, just considered. We think they constitute a proper application of the law to the facts, and do not find in them cause for reversal.

There remains to be considered an objection to the charge which defendant stresses as gravely prejudicing his case. After retiring and considering the case for some time, the jury returned to the courtroom, where further instruction was given them. The part to which defendant objects was as follows: "If you answer the second issue `Yes,' then that ends the lawsuit and, of course, the plaintiff could not recover, gentlemen of the jury, if they were guilty of contributory negligence."

The law requires that persons of intelligence be selected as jurors. As such, when repeatedly told to proceed no further if they answered the issue of contributory negligence "yes," leaving the issue of damages unanswered, they must have inferred that the plaintiff would, in that event, get nothing. The exception is without merit.

Separate and detailed comment on the numerous exceptions noted in the trial would serve no useful purpose. We have dealt with the main features of the case out of which the important exceptions arise. Others have been carefully considered.

We find

No error.