Cook v. Ponos, 835SC47

• Decision Date: 20 December 1983
• Docket Number: No. 835SC47,835SC47
• Citation: Cook v. Ponos, 309 S.E.2d 706, 65 N.C.App. 705 (N.C. App. 1983)
• Court: North Carolina Court of Appeals
• Parties: William Rhyne COOK v. Tasia Gardelis PONOS.

Page 706

309 S.E.2d 706

65 N.C.App. 705

William Rhyne COOK v.Tasia Gardelis PONOS.

No. 835SC47.

Court of Appeals of North Carolina.

Dec. 20, 1983.

Goldberg & Anderson by Frederick D. Anderson, Wilmington, for plaintiff, appellant.

Crossley & Johnson by John F. Crossley, Wilmington, for defendant, appellee.

HEDRICK, Judge.

The sole question raised by plaintiff on appeal is whether the court erred "in entering judgment in favor of defendant at the close of plaintiff's evidence upon the ground of contributory negligence as a matter of law on the part of plaintiff."

Defendant's motion for a directed verdict on the ground of contributory negligence was properly granted only if "plaintiff's evidence, taken as true and interpreted in the light most favorable to plaintiff, so clearly shows [plaintiff's] negligence to have been a proximate cause of [the accident] that it will support no other conclusion as a matter of law."Neal v. Booth, 287 N.C. 237, 241, 214 S.E.2d 36, 39(1975).Even when the evidence establishes negligence per se, the question whether such negligence was the proximate cause of plaintiff's own injuries is ordinarily one for the jury.Furr v. Pinoca Volunteer Fire Dept., 53 N.C.App. 458, 281 S.E.2d 174, disc. rev. denied, 304 N.C. 587, 289 S.E.2d 377(1981)."Negligence bars recovery only if it is a proximate cause of the injuries complained of; otherwise, it is of no legal importance."Bigelow v. Johnson, 303 N.C. 126, 131, 277 S.E.2d 347, 351(1981)."When conflicting inferences of causation arise from the evidence, it is for the jury to determine from the attendant circumstances what proximately caused the injuries complained of," and entry of a directed verdict in such a case is error.Id. at 132, 277 S.E.2d at 351(citations omitted).

In the instant case the evidence, taken in the light most favorable to the plaintiff, shows the following: On 13 August 1980plaintiff was operating a motorcycle in the northbound "outside travel lane" of U.S. Highway 421, outside Wilmington.That portion of the highway on which plaintiff was traveling has four travel lanes and a center turn lane, and it is bordered on each side by a "parking lane."Plaintiff was traveling approximately forty miles per hour, the speed limit, as he approached the point where the accident occurred.Approximately 150 to 200 yards south of the point of collision plaintiff passed a car.Plaintiff exceeded the legal speed limit in passing this vehicle, and he passed the car on the right, by moving his motorcycle into the "parking lane."Confronted with a truck parked in this lane, plaintiff quickly returned to the "outside travel lane," in...