
72 S.E.2d 25 (1952)
236 N.C. 72
COX
v.
HENNIS FREIGHT LINES, Inc.
MATTHEWS
v.
HENNIS FREIGHT LINES, Inc.
No. 240.
Supreme Court of North Carolina.
August 22, 1952.
*28 J. T. Reece, Yadkinville, Wm. M. Allen, and Hoke F. Henderson, Elkin, for plaintiffs, appellees.
Folger & Folger, Mount Airy, for defendant, appellant.
ERVIN, Justice.
The court can not submit a case to the jury on a particular theory unless such theory is supported by both the pleadings and the evidence. Hooper v. Glenn, 230 N.C. 571, 53 S.E.2d 843; Ewing v. Kates, 196 N.C. 354, 145 S.E. 673; Pittman v. Tobacco Growers' Association, 187 N.C. 340, 121 S.E. 634; Frick Co. v. Boles, 168 N.C. 654, 84 S.E. 1017; Wilson v. Altantic Coast Line Railroad Co., 142 N.C. 333, 55 S.E. 257. In ascertaining whether a pleading upholds a theory, the court construes the allegations of the pleading with liberality in favor of the pleader with a view to presenting the case on its real merits. G.S. § 1-151; Lyon v. Atlantic Coast Line R. Co., 165 N.C. 143, 81 S.E. 1. In determining the sufficiency of evidence to sustain the theory of the complaint and to withstand the motion of the defendant for a compulsory nonsuit, the court interprets the evidence in the light most favorable to the plaintiff. Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757, 17 A.L.R.2d 881; Higdon v. Jaffa, 231 N.C. 242, 56 S.E.2d 661; Potter v. National Supply Co., 230 N.C. 1, 51 S.E.2d 908; Hughes v. Thayer, 229 N.C. 773, 51 S.E.2d 488. In performing this task, the court bears in mind that the credibility of witnesses and the weight to be given to their testimony are matters within the province of the jury, and that the jury may accept as true a part of the testimony offered by a party and reject as false the remainder of such testimony. Graham v. North Carolina Butane Gas Co., supra; Casada v. Ford, 189 N.C. 744, 128 S.E. 344; Hadley v. Tinnin, 170 N.C. 84, 86 S.E. 1017; Maynard v. Sears, 157 N.C. 1, 72 S.E. 609; Newby v. *29 Edwards, 153 N.C. 110, 68 S.E. 1062; State v. Smallwood, 75 N.C. 104.
When the pleadings and the evidence in the cases now before us are tested by these rules, it is manifest that they support two theories of recovery. These theories are somewhat alternative in character, and are summarized in the numbered paragraphs set forth below:
1. The driver of the defendant's tractor-trailer combination was guilty of negligence in that he failed to stop in obedience to a red traffic light as commanded by the ordinance, and his negligence in this respect proximately caused the death of Patty Matthews Cox and the personal injury of Lethie Matthews.
2. Marvin Matthews drove the Chevrolet automobile into the intersection first and undertook to proceed straight through it ahead of the tractor-trailer combination, whose driver could observe the prior entry and occupancy of the intersection by the Chevrolet car. Notwithstanding this, the driver of the tractor-trailer combination immediately proceeded onto the intersection without permitting the Chevrolet automobile to clear the intersection or its pathway thereon. In so doing, the driver of the tractor-trailer combination was negligent in that he failed to maintain a proper lookout, or in that he failed to keep his vehicle under reasonable control, or in that he drove his vehicle at a speed greater than was reasonable and prudent under the conditions then existing. The negligence of the driver of the tractor-trailer combination in one or more of these respects, either of itself or in conjunction with concurrent negligence on the part of Marvin Matthews, proximately caused the death of Patty Matthews Cox and the personal injury of Lethie Matthews, irrespective of the color of the traffic light confronting the driver of the tractor-trailer combination at the time of his entry into the intersection.
These theories rest upon substantial legal foundations. The legislature has decreed in express terms that "local authorities shall have power to provide by ordinances for the regulation of traffic by means of * * * signaling devices on any portion of the highway where traffic is heavy or continuous". G. S. § 20-169. In consequence, the Town of Mount Airy acted within the limits of its authority as a municipal corporation in enacting its ordinance and in installing its automatic traffic control signals. Since the ordinance is designed to guard the safety of persons using the public streets of the municipality, a motorist is negligent as a matter of law if he fails to stop in obedience to a red traffic light as required by the ordinance, and his negligence in that particular is actionable if it proximately causes the death or injury of another. Boles v. Hegler, 232 N.C. 327, 59 S.E.2d 796; Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246; Dillon v. City of Winston-Salem, 221 N.C. 512, 20 S.E.2d 845; Holland v. Strader, 216 N.C. 436, 5 S.E.2d 311; King v. Pope, 202 N.C. 554, 163 S.E. 447; Wolfe v. Independent Coach Line, 198 N.C. 140, 150 S.E. 876; Wolfe v. Baskin, 137 Ohio St. 284, 28 N.E.2d 629. The mere fact that the operator of a motor vehicle may have a green light facing him as he approaches and enters an intersection where traffic is regulated by automatic traffic control signals does not relieve him of his legal duty to maintain a proper lookout, to keep his vehicle under reasonable control, and to drive his vehicle at a speed which is reasonable and prudent under existing conditions, or exonerate him from legal liability for the death or injury of another proximately resulting from his failure to perform his legal duty in one or more of these respects. Bobbitt v. Haynes, 231 N.C. 373, 57 S.E.2d 361; Sebastian v. Horton Motor Lines, 213 N.C. 770, 197 S.E. 539; Rose v. Campitello, 114 Conn. 637, 159 A. 887; Davis v. Dondanville, 107 Ind.App. 665, 26 N.E.2d 568; Landess v. Mahler, 295 Ill.App. 498, 15 N.E.2d 13; Capillon v. Lengsfield, La. App., 171 So. 194; McCormick & Co. v. Cauley, La.App., 168 So. 783; United States Fidelity & Guaranty Co. v. Continental Baking Co., 172 Md. 24, 190 A. 768; Shea v. Judson, 283 N.Y. 393, 28 N.E.2d 885; Schmidt v. City Ice & Fuel Co., 60 *30 Ohio.App. 29, 19 N.E.2d 514; Radobersky v. Imperial Volunteer Fire Dept., 368 Pa. 235, 81 A.2d 865; Wilson v. Koch, 241 Wis. 594, 6 N.W.2d 659.
These things being true, the court rightly refused to nonsuit the actions. In reaching this conclusion, we do not overlook the circumstance that the first theory of recovery presented by plaintiffs is defectively stated in their pleadings. The complaints do not allege, as they ought, that the automatic traffic control signals at the intersection involved in the tragedy were maintained and operated under an ordinance of the Town of Mount Airy. Stewart v. Yellow Cab Co., 225 N.C. 654, 36 S.E.2d 256. It appears, however, that the defendant sets forth this material fact in its answers in complete detail. As a consequence, the rule that a defective pleading may be aided by the allegations of the adverse party applies. Under this rule, the answer of a defendant aids the complaint, and cures an omission if it affirmatively alleges a material fact not alleged by the plaintiff. Ricks v. Brooks, 179 N.C. 204, 102 S.E. 207; Harvell v. Weldon Lumber Co., 154 N.C. 254, 70 S.E. 389; Bank of Tarboro v. Fidelity & Deposit Co., 126 N.C. 320, 35 S.E. 588, 83 Am.St.Rep. 682; Whitley v. Southern Railroad Company, 119 N.C. 724, 25 S.E. 1018; Lockhart v. Bear, 117 N.C. 298, 23 S.E. 484; Willis v. Branch, 94 N.C. 142; Johnson v. Finch, 93 N.C. 205; Pearce v. Mason, 78 N.C. 37; Garrett v. Trotter, 65 N.C. 430.
Counsel for the defendant aptly tendered to the court written requests for these special instructions:
1. The operator of defendant's truck was not under the duty of anticipating negligence on the part of the operator of the Matthews car and in the absence of anything which should have given him notice that the operator (of the Matthews car) was not going to stop at the intersection * * *, the operator of defendant's truck was entitled to assume and to act on the assumption that the operator of the Matthews car would exercise ordinary care for his own safety and the safety of the occupants of his car and bring his car to a stop before entering the intersection, if the signaling device had a red or stop signal at the intersection at the time the Matthews car approached and entered the intersection.
2. The court charges you that if the signal light was green facing the driver of defendant's truck * * * at the time defendant's driver approached the intersection, and there was nothing to * * * prevent the driver of the Matthews car from seeing the truck as it approached the intersection, there would be no duty on defendant's driver to anticipate that Matthews would fail to stop as required by the * * * ordinance, and * * * the signal light, and in the absence of anything which gave or should have given notice to the contrary, defendant's driver was entitled to assume and to act on the assumption * * * that Matthews would not only exercise ordinary care for his own safety as well as (that of) those riding in his car, but would act in obedience to the ordinance * * * and the signaling device * * * before entering the intersection.
Instead of giving such instructions, the court charged the jury on this aspect of the controversy in this language: "As long as the operator of a motor vehicle upon a public street or highway is exercising due care, he has the right to rely upon signal devices erected and maintained by a municipal corporation. As long as the operator of a motor vehicle upon a public street is in the exercise of due care, he has the right to assume that others who are operating along the highway will obey the laws and ordinances regulating the operation of motor vehicles, unless there are circumstances to put him on notice to the contrary. If Gerald Fisher Hamer, the defendant's driver, was in the exercise of due care and if there were no circumstances to put him on notice that Marvin Matthews was failing to observe and obey the law, if Marvin Matthews did fail to observe and obey the law, then if Gerald Fisher Hamer, the defendant's driver, under those circumstances, drove into the intersection while the light facing him was *31 green, it would not be negligence on his part to assume that Marvin Matthews would obey the law and stop if the red light was facing him."
The defendant asserts in its assignments of error that the court erred in refusing the requests for special instructions, and in charging the jury as set out above.
The requests of the defendant for special instructions are sanctioned by this well settled doctrine: One is not under the duty of anticipating disobedience of law or negligence on the part of others, but in the absence of anything which gives or should give notice to the contrary a person is entitled to assume, and to act on the assumption, that others will obey the law and exercise ordinary care. Chaffin v. Brame, 233 N.C. 377, 64 S.E.2d 276; State v. Hill, 233 N.C. 61, 62 S.E.2d 532; Bobbitt v. Haynes, supra; Wilson v. Central Motor Lines, 230 N.C. 551, 54 S.E.2d 53; Cox v. Lee, 230 N.C. 155, 52 S.E.2d 355; Dawson v. Seashore Transportation Co., 230 N.C. 36, 51 S.E.2d 921; Tyson v. Ford, 228 N.C. 778, 47 S.E.2d 251; Gaskins v. Kelly, 228 N.C. 697, 47 S.E.2d 34; Hill v. Lopez, 228 N.C. 433, 45 S.E.2d 539; Tysinger v. Coble Dairy Products, supra; Cummins v. Southern Fruit Co., 225 N.C. 625, 36 S.E.2d 11; Hobbs v. Queen City Coach Co., 225 N.C. 323, 34 S.E.2d 211; Yellow Cab Co. v. Sanders, 223 N.C. 626, 27 S.E.2d 631; Montgomery v. Blades, 222 N.C. 463, 23 S.E.2d 844; Tarrant v. Pepsi-Cola Bottling Co., 221 N.C. 390, 20 S.E.2d 565; Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239; Murray v. Atlantic Coast Line R. Co., 218 N.C. 392, 11 S.E.2d 326; Guthrie v. Gocking, 214 N.C. 513, 199 S.E. 707; Sebastian v. Horton Motor Lines, supra; Quinn v. Atlantic & Yadkin R. Co., 213 N.C. 48, 195 S.E. 85; Hancock v. Wilson, 211 N.C. 129, 189 S.E. 631; James v. Carolina Coach Co., 207 N.C. 742, 178 S.E. 607; Jones v. Bagwell, 207 N.C. 378, 177 S.E. 170; Cory v. Cory, 205 N.C. 205, 170 S.E. 629; Shirley v. Ayers, 201 N.C. 51, 158 S.E. 840; Wilkinson v. Southern R. Co., 174 N.C. 761, 94 S.E. 521; Wyatt v. Seaboard Air Line R. Co., 156 N.C. 307, 72 S.E. 383; 38 Am.Jur., Negligence, section 192; 65 C.J.S., Negligence, § 15.
The able and conscientious trial judge was undoubtedly constrained to refuse the requests for special instructions and to charge the jury as he did by statements in the opinions in Groome v. Davis, 215 N.C. 510, 2 S.E.2d 771, and Swinson v. Nance, 219 N.C. 772, 15 S.E.2d 284, 290, to the effect that a motorist forfeits a right of way conferred upon him by positive legislative enactment and disables himself to claim the benefit of the doctrine invoked by the defendant in the instant cases if he is not altogether free from negligence.
Although these statements constituted mere obiter dicta in the Groome case, they were recognized and applied as established law by a divided court in the Swinson case. Inasmuch as the majority opinion in the last named decision stated that "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 may be argued that the majority of the court in the Swinson case simply intended to uphold the sound proposition that a motorist whose negligence has proximately caused injury to another can not absolve himself from liability by claiming that he assumed that the injured party or some third person would act lawfully and prudently. Be this as it may, it can not be gainsaid that the statements in the opinions in the Groome and Swinson cases fully support the action of the trial judge in refusing the requests for special instructions and in charging the jury as he did.
It thus appears that we can not pass on the assignments of error under consideration without either approving or disapprovin the statements of the Groome and Swinson cases.
It may seem at first blush that the nebulous cause of legal righteousness will be served by classifying as legal pariahs all those who are guilty of negligence of any character, regardless of whether or not there is any probability, or even possibility, that their negligence will result in injury to themselves or others.
Second thought compels the conclusion, however, that the law of negligence as it *32 has been established and enforced in this jurisdiction time out of mind can not be reconciled with the unqualified assertions of the Groome and Swinson cases that the right to rely on a right of way created by positive legislation and to assume that other users of the highway will obey the law and exercise ordinary care is restricted to those motorists, who are themselves absolutely free from negligence.
The validity of this view is obvious, we think, when the part of the charge under scrutiny and its inherent implications are stated. When this is done, the charge comes to this: If the two motor vehicles involved in these cases approached and reached the intersection when the traffic light facing the defendant's driver was green and the traffic light confronting the operator of the Chevrolet car was red, the defendant's driver had no right to rely on the automatic traffic control signals or to act on the assumption that the operator of the Chevrolet car would observe the ordinance and stop in obedience to the red light if he, i. e., the defendant's driver, was negligent in any respect, even though the attending circumstances reasonably indicated that the operator of the Chevrolet car intended to observe the ordinance and stop in obedience to the red light, and even though the attending circumstances also reasonably indicated that there was no likelihood whatever that the negligence of the defendant's driver would cause any injury to an occupant of the Chevrolet car or any other person.
The statements of the Groome and Swinson cases are not sound law. Their acceptance as such would produce virtual chaos in the administration of the law of negligence. They constitute a negation of the basic concept that since every person necessarily acts on appearances, his conduct in a given situation must be judged in the light of all the circumstances surrounding him at the time. Malcolm v. Mooresville Cotton Mills, 191 N.C. 727, 133 S.E. 7; Perkins v. Spray Wood & Coal Co., 189 N.C. 602, 127 S.E. 677; Forsyth v. Zebulon Cotton Mill Co., 167 N.C. 179, 83 S.E. 320. They ignore the fundamental principle that the only negligence of legal importance is negligence which proximately causes or contributes to the injury under judicial investigation. Smith v. Whitley, 223 N.C. 534, 27 S.E.2d 442; Wall v. City of Asheville, 219 N.C. 163, 13 S.E.2d 260; Byrd v. Southern Express Co., 139 N.C. 273, 51 S.E. 851. When they are incorporated in a charge, they obscure the essential rule that "Foreseeable injury is a requisite of proximate cause, and proximate cause is a requisite for actionable negligence, and actionable negligence is a requisite for recovery in an action for personal injury negligently inflicted." Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808, 812. Indeed, an instruction embodying these statements has an exceedingly strong tendency to implant in the minds of jurors the fallacious notion that when a motorist, who undertakes to exercise a right of way conferred on him by positive legislation, is negligent in any degree, he makes himself legally accountable "for whatsoever shall come to pass," no matter how unforeseeable it may be. When all is said, the statements under scrutiny necessarily rest on a commixture of these somewhat perplexing theories: (1) That the nebulous cause of legal righteousness requires that a motorist be penalized for his negligence, even though it bears no causal relation whatever to the occurrence under judicial investigation; and (2) that the negligence of a motorist, however inconsequential it may be, can nullify positive legislation aptly designed to protect human life and limb at highway intersections.
For the reasons given, we are compelled to dissapprove the statements of the Groome and Swinson cases, and to hold that the trial judge erred in carrying those statements into effect by refusing the requests for special instructions and by charging the jury as he did. The error of the judge in so doing prejudiced the rights of the defendant, and necessitates a new trial of these cases. It is so ordered.
New trial.
