Bailey v. Michael

Feb 3, 1950
665
Versions:231 N.C. 404
57 S.E.2d 372
1950 N.C. LEXIS 458
Denny, J.

The defendants assign as error the refusal of the court below to sustain their motion for judgment as of nonsuit on the ground that the plaintiff’s intestate was guilty of contributory negligence as a matter of law, citing Powers v. Sternberg, 213 N.C. 41, 195 S.E. 88; Henson v. Wilson, 225 N.C. 417, 35 S.E. 2d 245; Tyson v. Ford, 228 N.C. 778, 47 S.E. 2d 22; Cox v. Lee, 230 N.C. 155, 52 S.E. 2d 355, and G.S. 20-158.

A motion for judgment as of nonsuit on the ground of contributory negligence on the part of a plaintiff or his intestate in actions for wrongful death, will not be granted if it is necessary to rely either in whole or in part on testimony offered by the defense to sustain the plea of con- *407 tributary negligence. Bundy v. Powell, 229 N.C. 707, 51 S.E. 2d 307, and cited cases.

Tbe burden of proof on the issue of contributory negligence being on the defendants, they were not entitled to a judgment as of nonsuit, unless the plaintiff’s evidence, taken in the light most favorable to him, so clearly established such negligence that no other reasonable inference or conclusion could be drawn therefrom. Dawson v. Transportation Co., 230 N.C. 36, 51 S.E. 2d 921; Hobbs v. Drewer, 226 N.C. 146, 37 S.E. 2d 131; Cummins v. Fruit Co., 225 N.C. 625, 36 S.E. 2d 11; McCrowell v. R. R., 221 N.C. 366, 20 S.E. 2d 352; Godwin v. R. R., 220 N.C. 281, 17 S.E. 2d 137; Hampton v. Hawkins, 219 N.C. 205, 13 S.E. 2d 227; Hayes v. Telegraph Co., 211 N.C. 192, 189 S.E. 499.

The evidence of the plaintiff and the defendants is in sharp conflict, but, as said by Stacy, C. J., in Barlow v. Bus Lines, 229 N.C. 382, 49 S.E. 2d 793: “It is only when the plaintiff proves himself out of court that nonsuit may be entered on the issue of contributory negligence. Phillips v. Nessmith, 226 N.C. 173, 37 S.E. 2d 178; Lincoln v. R. R., 207 N.C. 787, 178 S.E. 601. Discrepancies and contradictions, even in plaintiff’s evidence, are for the twelve and not for the court. Emery v. Ins. Co., 228 N.C. 532, 46 S.E. 2d 309; Bank v. Ins. Co., 223 N.C. 390, 26 S.E. 2d 862; Shell v. Roseman, 155 N.C. 90, 71 S.E. 86.” This is in accord with what was said in Battle v. Cleave, 179 N.C. 112, 101 S.E. 555, by Hoke, J., and quoted with approval by Brogden, J., in Williams v. Express Lines, 198 N.C. 193, 151 S.E. 197, as follows: “The burden of showing contributory negligence, however, is on the defendant, and the motion for nonsuit may never be allowed on such an issue where the controlling and pertinent facts are in dispute, nor where opposing inferences are permissible from plaintiff’s proof, nor where it is necessary in support of the motion to rely, in whole or in part, on evidence offered for the defense.”

The defendants contend, however, that the failure of plaintiff’s intestate to bring his car to a complete stop before entering the intersection was a violation of G.S. 20-158. Conceding the failure of plaintiff’s intestate to stop his car before entering the intersection, we have held that failure to observe a stop sign is not negligence per se or prima facie negligence, but only evidence thereof, which may be considered by the jury, along with the other facts and circumstances adduced by the evidence, in passing upon the question of negligence. Hill v. Lopez,, 228 N.C. 433, 45 S.E. 2d 539; Reeves v. Staley, 220 N.C. 573, 18 S.E. 2d 239; Groome v. Davis, 215 N.C. 510, 2 S.E. 2d 771.

The authorities relied upon by the appellants are not controlling on this record. While it is true that sometimes the physical facts speak louder than the witnesses, Powers v. Sternberg, supra; but where the *408 driver of a ear is seriously or fatally injured in a collision, tbe control or lack of control exercised by sueb driver in bringing tbe car to a stop after tbe collision, is ordinarily but a circumstance to be considered by tbe jury together witb tbe other facts and circumstances adduced by tbe evidence, in passing upon tbe question of negligence or contributory negligence. Tbe facts in this case warranted tbe submission of tbe issue of contributory negligence to tbe twelve.

Tbe defendants also demurred ore terms, in this Court, to tbe plaintiff’s complaint on tbe ground that it fails to allege that tbe action was instituted within one year of bis intestate’s death. Tbe demurrer is overruled. Col yar, Admrx., v. Motor Lines, ante, 318.

In tbe trial below, we find

No error.