266 N.C. 637 | N.C. | 1966
The only question presented is the sufficiency of the evidence to require the court to submit to the jury an issue of Cannon’s negligence. According to the evidence of the plaintiff who was the only witness, Paul Carmon was driving south at 35 to 40 miles per hour on Highway No. 11 at 7:30 a.m. on August 4, 1964. A misty rain was falling. The surface of the highway was 20 feet wide. The shoulder on the west side was 10 to 12 feet wide, wet, and sloped downward slightly to a little ditch. The witness, in Carmon’s vehicle, saw the Cox Buick approaching from the south when it was approximately 900 feet away. It “had run off the paved portion of Highway #11 on the right, or East side, and then it came back across the center line on the left side and it went back again over, actually, I don’t know, how many times it zig-zagged across — it was going back and forth. . . . Carmon was on his right side of the center of the paved portion of the highway and never crossed the center line; that at the time of the accident the right front wheel of the Carmon car was off on the dirt shoulder. . . . The Carmon car had slowed down some,” before the collision.
The defendant Carmon was driving 35-40 miles per hour and on his side of the road. As the Cox vehicle approached, out of control and zig-zagging across the road, first on one side — -then on the other, Carmon slowed down and had a front wheel off to his right when the Cox Buick crashed into his Dodge, injuring the plaintiff. Should Carmon have gone to the wet and slippery shoulder and stopped? Or should he have slowed down, kept moving, and be in a position to evade the approaching vehicle which was visibly out of control? A still vehicle on the shoulder would be no less in danger than a moving one under the circumstances. Negligent conduct on the part of Carmon is not a permissible inference from the evidence offered. The judgment of nonsuit was proper, and is
Affirmed.