Donlop v. Snyder

• Decision Date: 12 December 1951
• Docket Number: No. 666,666
• Citation: 68 S.E.2d 316,234 N.C. 627
• Parties: DONLOP, v. SNYDER.
• Court: North Carolina Supreme Court

Page 316

68 S.E.2d 316

234 N.C. 627

DONLOP, v. SNYDER.

No. 666

Supreme Court of North Carolina.

Dec. 12, 1951

Don A. Walser, Lexington, for defendant, appellant.

Philip R. Craver and Stoner & Wilson, all of Lexington, for plaintiff, appellee.

JOHNSON, Justice.

The only exceptions brought forward on this appeal relate to the refusal of the trial court to allow the defendant's motion for nonsuit made at the conclusion of the plaintiff's evidence and renewed at the close of all the evidence.

The defendant contends the motion for nonsuit should have been allowed for the reasons (1) that the evidence fails to make out a prima facie case of actionable negligence against the defendant, but (2) if so, that the plaintiff's evidence establishes contributory negligence as a matter of law.

In determining the questions thus presented the rule is that the evidence must be considered in its light most favorable to the plaintiff 'and he is entitled to every reasonable intendment and legitimate inference fairly deducible therefrom. ' Brafford v. Cook, 232 N.C. 699, 62 S.E.2d 327, 328. See also Fowler v. Atlantic Company, Inc., N.C., 67 S.E.2d 496; Ervin v. Cannon Mills Co., 233 N.C. 415, 64 S.E.2d 431.

And where, as here, the motion for judgment of nonsuit is renewed at the close of all the evidence, the court may consider 'so much of the defendant's testimony as is favorable to the plaintiff or tends to clarify or explain evidence offered by the plaintiff not inconsistent therewith; but it must ignore that which tends to establish another and different state of facts or which tends to contradict or impeach the testimony presented by the plaintiff. ' Bundy v. Powell, 229 N.C. 707, at page 711, 51 S.E.2d 307, at page 310. See also Howard v. Bell, 232 N.C. 611, 62 S.E.2d 323.

Contributory negligence is an affirmative defense which must be pleaded and proved. G.S. § 1-139. However, the defendant may take advantage of such plea on motion for nonsuit 'when the facts necessary to show the contributory negligence are established by the plaintiff's own evidence. ' Bundy v. Powell, supra [229 N.C. 707, at page 711, 51 S.E.2d 310]. But, it will not do for the court to rely on any part of the evidence offered by the defendant. Bundy v. Powell, supra; Beck v. Hooks, 218 N.C. 105, at page 112, 10 S.E.2d 608; Lunsford v. Asheville Manufacturing Co., 196 N.C. 510, 146 S.E. 129.

And it is firmly established by the decisions of this Court that a motion for nonsuit on the ground of contributory negligence shown by the plaintiff's evidence will be allowed only when the evidence is so clear that no other reasonable inference is deducible therefrom. Bundy v. Powell, supra; Fowler v. Atlantic Company, Inc., supra.

An examination of the evidence in the light of these principles of law impels the conclusion that the plaintiff made out a prima facie case of actionable negligence, free of facts and circumstances shown by his own evidence entitling the defendant to judgment of nonsuit on the ground of contributory negligence.

This conclusion is supported by the evidence showing these factors: (1) that the night was rainy and foggy, indicating limited visibility; (2) that the plaintiff, after stopping and looking, moved slowly through the intersection in second gear, and was hit from the right side as the front part of his car was emerging from the far side of the intersection; (3) the defendant's admission that he saw the plaintiff 'in the intersection but * * * was coming so fast he could not stop'; and (4) the evidence as to the position and condition of the plaintiff's car after the wreck, showing it was practically demolished,--knocked sideways beyond the curb and embedded in a tree, after breaking off a fire hydrant and a 14-inch telephone pole.

This evidence supports the inference that the plaintiff was first in the intersection and that the defendant negligently failed to yield the right-of-way to him as required by G.S. § 20-155(b), as amended. This statute provides that 'The driver of a vehicle approaching but not having entered an intersection * * * shall yield the right-of-way to a vehicle already within such intersection * * *. ' See Kennedy v. Smith, 226 N.C. 514, 39 S.E.2d 380; Crone v. Fisher, 223 N.C. 635, 27 S.E.2d 642; Yellow Cab Co. v. Sanders, 223 N.C. 626, 27 S.E.2d 631; Piner v. Richter, 202 N.C. 573, 163 S.E. 561. See also State v. Hill, 233 N.C. 61, 62 S.E.2d 532, where Ervin, J., succinctly states and explains the rules governing the rights and duties of motorists approaching and entering highway and street intersections.

The defendant urges that the plaintiff proved himself out of court on the theory of contributory negligence when he offered evidence tending to show that from a point 5 feet from the intersection, where he stopped before entering, he could see up the side street 'almost a block' in the direction from which the defendant was approaching, and that he looked up the street but saw no car coming. From this, the defendant insists it is inferable that the plaintiff failed to see the obvious and is chargeable with contributory negligence as a matter of law for failure to observe the defendant's approach and yield the right-of-way to him, under the provisions of G.S. § 20-155(a)...