Blackwell v. Butts
| Decision Date | 12 May 1971 |
| Docket Number | No. 71,71 |
| Citation | 278 N.C. 615,180 S.E.2d 835 |
| Parties | Thomas E. BLACKWELL v. Henry T. BUTTS, Guardian Ad Litem of Larry Wayne Butts. |
| Court | North Carolina Supreme Court |
McMichael, Griffin & Post, by Albert J. Post and W. Edward Deaton, Reidsville, for plaintiff appellant.
Bethea, Robinson & Moore, by Norwood E. Robinson, Reidsville, for defendant appellee.
The trial was by the court without a jury. A contention by defendant that plaintiff upon the facts and the law had shown no right to relief should have been presented by a motion to dismiss on that ground. Rule 41(b) of the Rules of Civil Procedure (G.S. § 1A--1). The record does not show defendant made a motion to dismiss.
In reversing on the ground there was insufficient evidence to support the factual elements in Finding of Fact #6, the Court of Appeals held in effect that upon the facts and the law plaintiff had shown no right to relief and that plaintiff's action should have been dismissed on that ground. This was comparable to the ground for entering a judgment of involuntary nonsuit under the former procedure.
Rule 52(a)(1) provides: 'In all actions tried upon the facts without a jury * * *, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.'
Instead of Stating separately his conclusions of law, the trial judge answered issues of negligence and contributory negligence. Although we do not approve this variation from the procedure prescribed by Rule 52(a)(1), we treat the court's answers to these issues as the equivalent of stated conclusions of law (1) that plaintiff's Ford was damaged by the negligence of defendant, and (2) that plaintiff did not by his own negligence contribute to his own damage.
When a jury trial is waived, the court's findings of fact have the force and effect of a verdict by a jury and are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary. Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E.2d 29, 33, and cases cited. There is no difference in this respect in the trial of an action upon the facts without a jury under Rule 52(a)(1) and a trial upon waiver of jury trial under former G.S. § 1--185. Findings of fact made by the court which resolve conflicts in the evidence are binding on appellate courts.
The greater portion of the evidence has been quoted in the majority opinion of the Court of Appeals. Repetition in detail is unnecessary.
According to Mrs. Blackwell: She had stopped at the edge of Highway No. 150. Immediately before driving onto the highway, she looked to her right and saw no approaching vehicle. Although unsure as to the exact distance, she 'guessed' she could see 'about 200 feet.' Before the Blackwell Ford was struck by the Chevrolet operated by defendant, Mrs. Blackwell had entered upon the highway, turned obliquely to her left, shifted into second gear, got fully in the lane for westbound traffic and was proceeding in that (her right) lane at a speed of 'about 15 to 20 miles per hour.' The Blackwell car had traveled 'about 50 feet' from the time Mrs. Blackwell started out until struck by the Chevrolet. Mrs. Blackwell 'did not hear a horn blow, nor did (she) hear tires squeal.'
According to defendant: When he first saw the Blackwell car, it was stopped at the end of the driveway, the bumper being 'about even with the pavement.' It was then 'about 300 feet' from him. His speed was from fifty to fifty-five miles per hour. About the time he saw the Blackwell car, Mrs. Blackwell started to pull out. At that time he blew his horn and applied his brakes enough to break the speed but not enough to slide the wheels. The Blackwell car 'kept coming out in the highway' and defendant 'kept on blowing (his) horn.' The right front of his car struck the left rear of the Blackwell car. When this occurred, the Blackwell car 'was in the middle of the road in an angle.'
If the actual impact between the Chevrolet operated by defendant and the Blackwell car occurred 'on the left side of the center of the road,' as defendant testified, it may be there was insufficient time for defendant to stop between the first observable movement of the Blackwell car into Highway No. 150 and the collision. On the other hand, if the actual impact occurred when the Blackwell car was fully in the right lane for westbound traffic and was proceeding therein, as Mrs. Blackwell testified, there was evidence which, when considered in the light most favorable to plaintiff, was sufficient to support findings that defendant, if he had exercised due care to keep a proper lookout and to keep the Chevrolet under proper control, saw or by the exercise of due care should have seen the Blackwell car as it entered and crossed Highway No. 150 and that, by the exercise of due care, defendant could have brought the Chevrolet under control by applying the brakes with greater vigor or by swerving the Chevrolet to his left or both.
The record contains a stipulation that '(t)he accident report prepared by the investigating Highway Patrolman * * * is admitted into evidence for the purpose of tending to show what the officer would testify to if he were in Court with the exception that the entry as to the speed would not be competent.' It appears from the diagram on this accident report that the Blackwell car was entirely on its right side of the road when struck by the Chevrolet operated by defendant.
The court resolved the conflict in the evidence as to where the impact occurred in plaintiff's favor in Finding of Fact #4.
It appears from the accident report that no tire impressions were made by the Blackwell car or by the Chevrolet prior to the impact; that after the Chevrolet traveled a distance of 108 feet and the Ford a distance of 71 feet; and that the Ford had been knocked across a ditch to its right and had...
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...Findings of fact made by the court which resolve conflicts in the evidence are binding on appellate courts.Blackwell v. Butts, 278 N.C. 615, 619, 180 S.E.2d 835, 837 (1971). Therefore, the trial court's findings of fact as contained in the 4 August 2009 order are binding upon this Court. We......
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