Howard v. Bingham

• Citation: Howard v. Bingham, 231 N.C. 420, 57 S.E.2d 401 (N.C. 1950)
• Decision Date: 03 February 1950
• Citation: 231 N.C. 420,57 S.E.2d 401
• Docket Number: No. 749,749
• Court: North Carolina Supreme Court
• Parties: HOWARD, v. BINGHAM et al.

Page 401

57 S.E.2d 401

231 N.C. 420

HOWARD, v. BINGHAM et al.

No. 749

Supreme Court of North Carolina.

Feb. 3, 1950

Womble, Carlyle, Martin & Sandridge, Winston-Salem, for defendants-appellants.

Deal & Hutchins, Winston-Salem, for plaintiff-appellee.

DEVIN, Justice.

The only error assigned in defendants' appeal was the denial of their motion for judgment of nonsuit, and the only ground upon which it was argued that this motion should have been sustained was that on plaintiff's testimony the injury to his automobile proximately resulted from his own contributory negligence.

While contributory negligence is an affirmative defense and within the rule that ordinarily nonsuit will not be allowed in favor of the party upon whom rests the burden of proof, Sims v. Lindsay, 122 N.C. 678, 30 S.E. 19, the principle is well settled that when the plaintiff's own testimony establishes contributory negligence as a matter of law nonsuit should be allowed. Elder v. Plaza Ry., 194 N.C. 617, 140 S.E. 298; Hampton v. Hawkins, 219 N.C. 205, 13 S.E.2d 227; Parkway Bus Co. v. Coble Dairy Products Co., 229 N.C. 352, 49 S.E.2d 623; Brown v. W. B. & S. Bus Lines, 230 N.C. 493, 53 S.E.2d 539; Cox v. Lee, 230 N.C. 155, 52 S.E.2d 355; Fawley v. Bobo, 231 N.C. 203, 56 S.E.2d 419. But it has been frequently declared by this Court that nonsuit on the ground of contributory negligence should be allowed only when the plaintiff's evidence so clearly establishes such negligence that no other reasonable inference can be drawn therefrom. Bailey v. Michael, N.C., 57 S.E.2d 372; Dawson v. Seashore Transportation Co., 230 N.C. 36, 51 S.E.2d 921; Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251; Hobbs v. Drewer, 226 N.C. 146, 37 S.E.2d 121; Cummins v. Southern Fruit Co., 225 N.C. 625, 36 S.E. 2d 11; Cole v. Koonce, 214 N.C. 188, 198 S.E. 637. 'It is only when plaintiff proves himself out of court that nonsuit may be entered on the issue of contributory negligence. ' Barlow v. City Bus Lines, 229 N.C. 382, 49 S.E.2d 793, 794.

In order to determine the propriety of the ruling below to which appellants have noted exception, we have examined the evidence shown by the record before us, and find the material facts according to plaintiff's testimony were these: On January 8, 1948, between 8 and 9 A.M. plaintiff was driving his automobile on the paved highway from Clemmons to Winston-Salem, and was following immediately behind defendants' large truck loaded with lumber which was proceeding in the same direction around a curve in the road. The truck was being driven at about 20 miles per hour. Some 275 or 280 feet beyond the end of the curve was an unpaved side road leading to the left. The paved highway extended straight for 500 yards or more. There was no other traffic in sight. Reaching the end of this curve, with his view unobstructed, plaintiff sounded his horn and undertook to pass, travelling at the rate of 40 miles per hour. The driver of defendants' truck, however, when 75 feet from the intersecting side road, without previous signal, drove the truck to the left into plaintiff's lane of travel, in front of plaintiff's automobile. The only signal given was by the truck driver's hand just as plaintiff's front wheels were even with the truck's rear wheels. Plaintiff immediately applied his brakes and pulled to his left as far as he could without going down an embankment. Plaintiff testified the truck 'just pulled right straight across the road in front of me and cut the corner of the intersection * * * I either had to hit him or go down the...