Turpin v. Gallimore

8 N.C. App. 553 | N.C. Ct. App. | 1970

BRITT, J.

Plaintiff’s first assignment of error relates to the allowance of defendants’ motion for directed verdict and judgment dismissing his action. We hold that the motion was properly allowed and judgment appropriately entered for that plaintiff’s own evidence disclosed contributory negligence as a matter of law on the part of the driver of plaintiff’s automobile, which contributory negligence was imputed to plaintiff.

No inflexible rule can be laid down as to whether the evidence discloses contributory negligence as a matter of law, but each case must be determined upon its own particular facts. 6 Strong, N.C. Index 2d, § 35, p. 72. Dismissal of the action because of contributory negligence is proper when plaintiff’s own evidence reasonably permits no other inference. Lowe v. Futrell, 271 N.C. 550, 157 S.E. 2d 92.

Plaintiff’s own evidence disclosed that the driver of his automobile attempted to make a left turn at an intersection of two four-lane streets; that traffic at the intersection was controlled by an electric traffic control signal; that the feme defendant was proceeding in her proper lane on a green light in the opposite direction from which plaintiff’s driver was originally proceeding and struck the rear of plaintiff’s automobile as it crossed her lane. Although plaintiff alleged excessive speed on the part of the feme defendant, there was no evidence to support this allegation; plaintiff’s driver testified he did not see defendants’, automobile prior to the collision. Wc think plaintiff’s evidence reasonably permits no inference except that his driver attempted to make a left turn in the face of oncoming traffic without determining that said movement could be made safely, that he failed to keep a proper lookout, and that said driver failed to yield the right-of-way to the feme defendant.

For the reasons stated, the judgment of the superior court is

Affirmed.

Beocic and HbdRICK, JJ., concur.