7 N.C. App. 631 | N.C. Ct. App. | 1970
Plaintiff’s evidence showing defendant left his unlighted car at night parked across both lanes of a two-lane highway, while defendant searched for his lost cat, was clearly sufficient to require submission of an issue as to defendant’s actionable negligence. The non-suit can be sustained, if at all, only on the ground that plaintiff’s evidence so clearly establishes his own negligence as one of the proximate causes of his injuries that no other reasonable inference may be drawn therefrom. We do not agree with the trial court’s conclusion that it does.
Bobbitt, J. (now C.J.), speaking for the Court in Brown v. Hale, 263 N.C. 176, 139 S.E. 2d 210, stated:
“Judgment of involuntary nonsuit on the ground of contributory negligence should be granted when, and only when, the evidence, when considered in the light most favorable to plaintiff, ’establishes plaintiff’s contributory negligence so clearly that no other reasonable inference or conclusion may be drawn therefrom. This rule, repeatedly restated, is clear. Its application, at times, is difficult. Complete reconciliation of all the decided cases would tax the ingenuity of the most discriminating analyst.
“l. . . no factual formula can be laid down which will determine in every instance the person legally responsible for a rear-end collision on a highway at night between a standing vehicle and one that is moving.’ Stacy, C.J., in Tyson v. Ford, 228 N.C. 778, 781, 47 S.E. 2d 251. As stated by Seawell, J., in Cole v. Koonce, 214 N.C. 188, 191, 198 S.E. 637: ‘Practically every case must “stand on its own bottom.” ’ ”
Plaintiff’s evidence considered in the light most favorable to him would support a finding that: Pie was driving his car within his proper lane of travel at a speed of 55 miles per hour within a 60 mile per hour speed zone. It was a clear night and the paved surface of the highway was dry. The brakes and the steering mechanism of his car were in good order. He first observed defendant’s car when he was approximately 250 feet away. As soon as he saw it he applied but did not “slam on” his brakes, because he thought defendant’s car was moving. When he realized it wasn’t moving, he slammed on his brakes, at which time defendant’s car was approximately 200
Such findings would negative defendant’s allegations that plaintiff was driving at an excessive speed, failed to keep a proper lookout, or failed to keep his car under control. The jury could find from plaintiff’s evidence that he was operating within the posted speed limit and in compliance with the requirements of G.S. 20-141. His testimony as to when he first saw defendant’s car negates any inference that he failed to keep a proper lookout. G.S. 20-131 (a) required that plaintiff’s head lamps under normal atmospheric conditions and on a level road “produce a driving light sufficient to render clearly discernible a person two hundred feet ahead.” Plaintiff’s lights met this requirement, since he saw defendant’s car when it was 250 feet away. Plaintiff’s inability to stop his vehicle within the radius of his lights cannot be considered contributory negligence per se. G.S. 20-141 (e); Bass v. McLamb, 268 N.C. 395, 150 S.E. 2d 856.
While the evidence as to the skid marks would indicate plaintiff was driving at a speed greater than either he or his passenger testified to, the evidence would not compel a finding that the skid marks had in fact been made by plaintiff’s vehicle. The clear skid marks ended approximately 50 feet from defendant’s vehicle, and although a strong inference may arise that the marks were made by plaintiff’s car, whether in fact they were and what speed they indicate were questions for the jury. Plaintiff’s evidence was also conflicting on whether there was sufficient room on the shoulder of the road for his car to pass defendant’s car. Such discrepancies and contradictions in plaintiff’s evidence are matters for the jury and not the court to resolve. Coleman v. Burris, 265 N.C. 404, 144 S.E. 2d 241; Beasley v. Williams, 260 N.C. 561, 133 S.E. 2d 227.
While plaintiff’s own evidence would clearly support a jury finding that plaintiff was guilty of contributory negligence, we hold that it did not show that plaintiff was contributorily negligent as a matter of law. In view of this holding we do not deem it necessary to pass upon appellant’s remaining assignments of error, which relate to rulings admitting or excluding evidence, since these questions may not recur upon a new trial.
Reversed.
