Dennis v. City of Albemarle

• Decision Date: 14 December 1955
• Docket Number: No. 461,461
• Citation: 90 S.E.2d 532,243 N.C. 221
• Parties: John Teeman DENNIS v. The CITY OF ALBEMARLE, Ray Snuggs, and D. A. Holbrook, Contractor.
• Court: North Carolina Supreme Court

Page 532

90 S.E.2d 532

243 N.C. 221

John Teeman DENNIS v. The CITY OF ALBEMARLE, Ray Snuggs, and D. A. Holbrook, Contractor.

No. 461

Supreme Court of North Carolina.

Dec. 14, 1955

C. M. Llewellyn, M. B. Sherrin, Jr., and Ann Llewellyn Green, Concord, for plaintiff, appellee.

R. L. Smith & Son and Henry C. Doby, Jr., Albemarle, for defendant City of Albemarle, appellant.

BOBBITT, Justice.

In the original opinion, it is stated:

'Upon the evidence here presented, the inference is permissible that plaintiff responded involuntarily when accosted by one calling from the steeple of the church. It can hardly be said that, when plaintiff's attention was momentarily diverted by this rather unusual greeting, the only permissible inference is that he failed to act as an ordinarily prudent person would have acted under the circumstances then existing.

'Difficulty in observing the wire, on account of its size, color and location; inability to gauge the height of the wire on this and prior occasions and lack of knowledge of its height; and the momentary and involuntary diversion of attention when accosted from the church steeple; these circumstances, when considered together, are such that more than one reasonable inference may be drawn therefrom. Hence, the court properly submitted the issue of contributory negligence under appropriate instructions of law as related to the evidence.'

Defendant, in petition to rehear, insists that the fact that the momentary diversion of his attention was an involuntary response to the workman's call to him from the church steeple is irrelevant as a circumstance in his favor in determining what an ordinarily prudent person would have done under the same or similar circumstances; and that the original opinion is predicated upon general principles of law in conflict with our decisions.

The original opinion was not intended to overrule by implication the authority of earlier decisions of this Court. Nor do we think such intention can be reasonably inferred. Even so, since defendant apprehends that such was its effect, the petition to rehear was allowed solely for the purpose of considering those North Carolina decisions cited by defendant as in conflict with our decision in this case.

In the outset, it should be noted that this Court did not predicate its decision on a single circumstance. As quoted above, decision was predicated on all circumstances taken together.

Moreover, the quotation from 65 C.J.S., Negligence, § 120, patently a general statement, fully recognizes that 'Regard must be had to the exigencies of the situation, and the circumstances of the particular occasion. ' Only the decisions of this Court, as applied to the facts of specific cases, are to be regarded as authoritative in this jurisdiction. Thus, the authority of the decision in this case is simply that under the facts here disclosed, the momentary and involuntary diversion of plaintiff's attention was properly considered by the jury, in conjunction with all other circumstances, in resolving the issue of plaintiff's alleged contributory negligence. It was not held, as defendant suggests, that diverting circumstances in general or standing alone are sufficient to negative contributory negligence. The nature of such diverting circumstances must be considered in relation to the entire circumstances of each particular case.

Judgment of involuntary nonsuit on the ground of contributory negligence should be granted when, and only when, the undisputed evidence, taken 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.

Defendant cites Cook v. City of Winston-Salem, 241 N.C. 422, 85 S.E.2d 696; Garmon v. Thomas, 241 N.C. 412, 85 S.E.2d 589; Welling v. City of Charlotte, 241 N.C. 312, 85 S.E.2d 379; Waldrup v. Carver, 240 N.C. 649, 83 S.E.2d 663; Price v. City of Monroe, 234 N.C. 666, 68 S.E.2d 283; Gordon v. Sprott, 231 N.C. 472, 57 S.E.2d 785; Deaton v. Board of Trustees of Elon College, 226 N.C. 433, 38 S.E.2d 561; Benton v. Union Bank Building Co., 223 N.C. 809, 28 S.E.2d 491; Morrison v. Cannon Mills Co., 223 N.C. 387, 26 S.E.2d 857; Houston v. City of Monroe, 213 N.C. 788, 197 S.E. 571; King v. Manetta Mills Co., 210 N.C. 204, 185 S.E. 647; Scott v. Western Union Telegraph Co., 198 N.C. 795, 153 S.E. 413. Under the factual situations presented in each of these cases, wholly different from that here presented, this Court held that the undisputed evidence established contributory negligence as a matter of law. Alford v. Washington, 238 N.C. 694, 78 S.E.2d 915, also cited, seems wholly irrelevant. Defendant cites another group of cases, to wit: Dowdy v. Southern R. Co., 237 N.C. 519, 75 S.E.2d 639; Ingram v. Smoky Mountain Stages, 225 N.C. 444, 35 S.E.2d 337; Sherlin v. Southern R. Co., 214 N.C. 222, 198 S.E. 640; Redmon v. Southern R. Co., 195 N.C. 764, 143 S.E. 829. In each of these, this Court held that the undisputed evidence established contributory negligence as a matter of law; and further, in relation to the main question involved, that the evidence was insufficient to warrant submission of the issue of last clear chance . We have been unable to discover in any of these cases, nor has our attention been directed to, any feature relating to whether momentary and involuntary diversion of plaintiff's attention, on account of being personally accosted by a third party or otherwise, was of significance as a circumstance for consideration on the issue of contributory negligence.

We shall undertake to analyze briefly those cases discussed in defendant's petition to rehear and in brief on rehearing, to wit: Presley v. C. M. Allen & Co., 234 N.C. 181, 66 S.E.2d 789; Lee v. Southern R. Co., 180 N.C. 413, 105 S.E. 15; Rimmer v. Southern R. Co., 208 N.C. 198, 179 S.E. 753; Pope v. Atlantic Coast Line R. Co., 195 N.C. 67, 141 S.E. 350; Eller v. North Carolina R. Co., 200 N.C. 527, 157 S.E. 800.

In Presley v. Allen & Co., supra, plaintiff was driving west on Main Street in Canton. The street was 40 to 50 feet wide. Some four feet north of the south curb, defendant construction company had dug a ditch for the purpose of laying underground telephone cables. Dirt and clay formed an embankment 18 to 24 inches high on the north side of the ditch. The portion of Main Street north of this ditch, some 30 to 35 feet in width, was left open for traffic. It had been raining all that day until shortly before plaintiff's mishap. Clay was scattered over the portion of the street then used for travel. The street was wet and slippery. Plaintiff had driven over this portion of Main Street earlier that day. He was fully aware of all existing conditions. In driving west on this occasion, plaintiff's car skidded; and the left front wheel went into the ditch.

The decision establishes that there was no evidence of actionable negligence on the part of defendant; but this Court said that, if negligence were conceded, plaintiff's contributory negligence would bar recovery because it was clear from the record 'that the traveled portion of the street, parallel to and on the north side of the ditch, was amply wide for him, in the exercise of due care, to have remained out of slipping distance of the ditch.'

The evidence disclosed that plaintiff stopped at a red light signal at the intersection of Main Street and Adams Street. A policeman, stationed at the intersection, motioned to plaintiff to proceed. Evidently, defendant regards this as an analogous diverting circumstance. The mishap occurred west of the intersection. The...