Keener v. Beal, 171

• Decision Date: 22 May 1957
• Docket Number: No. 171,171
• Citation: 98 S.E.2d 19,246 N.C. 247
• Parties: Gordon Sully KEENER v. Lewis Edgar BEAL.
• Court: North Carolina Supreme Court

Page 19

98 S.E.2d 19

246 N.C. 247

Gordon Sully KEENER v. Lewis Edgar BEAL.

No. 171

Supreme Court of North Carolina.

May 22, 1957

Carpenter & Webb, Charlotte, for defendant, appellant.

Sheldon M. Roper, Lincolnton, and John H. Small, Charlotte, for plaintiff, appellee.

PARKER, Justice.

The defendant offered evidence. He assigns as error the refusal of the court to allow his motion for judgment of nonsuit made at the close of all the evidence. G. S. § 1-183; White v. Lacey, 245 N.C. 364, 96 S.E.2d 1. The defendant in his brief contends that plaintiff should have been nonsuited on the ground of contributory negligence, for the reason that plaintiff failed to keep a proper lookout, and 'was operating his automobile in the nighttime with headlights which were markedly below the statutory standard. ' The defendant says in his brief he has not argued the absence of negligence on the part of the defendant, though 'that clearly appears from the record. ' Defendant has selected contributory negligence as the ground upon which to wage battle.

Plaintiff's evidence tends to show the following facts: About 9:40 p. m. on 17 January 1956, a clear night, he was driving his Chevrolet automobile on State Highway 27 in the direction of Lincolnton. He had attended a meeting in Charlotte, and was returning to his home north of that town. His automobile was in good shape: its brakes were in good order. About 60 days before, his lights had been adjusted. He checked his lights, when he left Charlotte, and they were all burning. The lights were 'in number one condition.'

The speed limit for the part of the highway at the scene of the collision was 55 miles an hour. Plaintiff was driving 45 miles an hour on his right-hand side of the road. Just before he reached the top of a grade, he passed two automobiles. It is one-tenth of a mile from the top of the grade or hill to the scene of the accident, according to a measurement made by plaintiff's witness, Corporal Dave Houston of the State Highway Patrol. When he reached the top of the grade, he was meeting another automobile, whose driver blinked its lights. These lights made such a gleam, he blinked his lights several times to notify this driver he was still on low beam. After that automobile passed, he noticed a black automobile up in his lane of the road in the center. This automobile was 'dead still' without any lights on it. He was 25 feet away from this automobile in front of him at the time he saw it. He testified: 'Well, to my left, I saw the lights from another car coming from Lincolnton, coming around the curve. Well, I had to do something quick, and I made a pass for the field, on the shoulder of the road. I passed to my right and my left front wheel hooked this car's left-hind wheel. My front wheel hit this car's righthind wheel. ' He also testified the distance from where he passed the last automobile to the collision was 'from here to the next block.'

When the automobiles collided, plaintiff was thrown into the steering wheel and windshield and out of his automobile into a side ditch. He sustained severe injuries, and his automobile was destroyed. A crowd of people soon gathered. Plaintiff called for help, and the crowd moved to where he was lying behind his automobile. He asked, 'whose car was that up in the road without any lights? ' The defendant Beal replied, 'it was my car.' He then asked the defendant what he was doing in the road without any lights. The defendant replied, 'my battery was dead, and my lights would not burn, and we pushed it out, trying to get it started. ' Defendant did not say where he pushed it from. Plaintiff said, 'don't ever do that again.' Defendant replied, 'I am sorry, I won't.'

On cross-examination of plaintiff testimony tending to show these facts was elicited: His car was in good shape. He had had his headlights checked several times to see that they were in right focus. He could tell they were working all right as he was driving along the road from Charlotte. Defendant's automobile had two taillights on the rear, but they were not burning. These taillights had red glass, and were of the regular reflector type taillights. His headlights did not make any reflection to his eyes. He could just see a gleam, and no lights burning. His lights were adjusted so they did not shine on the automobile until he was 25 feet away from it. About that time there was another car coming around the curve at what had been referred to as the north end of the highway. A few seconds or a minute after putting his automobile on low beam, the collision occurred

Corporal Dave Houston had a conversation with the defendant at the scene of the collision. The defendant told Corporal Houston he and his wife had been visiting in Mrs. Jones' home, which is 150 feet off the road. Her driveway is south of the scene of the collision. He said he had a dead battery, and he pushed his automobile from the Jones' home, and had pushed it down the road about the length of a car on the paved portion of the highway. He did not have his lights on. He saw a car coming over the hill, reached in his car, turned the lights on, and just as he did the car hit him in the rear.

Corporal Houston described marks on the highway at the scene. He testified, 'as to whether I found any skid marks from this point' (the point of impact) 'toward Charlotte, I believe that is a 27 foot skid mark, but the last mark is right on the point of impact. ' He said it was possible to stop a standard width automobile on the shoulder and off the highway where the collision occurred. The shoulder of the road where plaintiff's car came to rest is 10 feet or more wide. On cross-examination Corporal Houston testified: 'I went back out there and measured on that night from where my lights would shine on the automobile and where my lights would fall down on the cars where this accident happened, where the marks of the impact was 600 feet.'

Defendant's evidence presents these facts: He had been visiting his sister-inlaw. During the visit his car was parked in her driveway. He left about 9:30 p. m. He testified as follows:

'I went out to the car and was starting it up, it was pretty slow and sluggish, and we drove the car on up to the pavement and it stopped, it stalled. That was the distance of approximately 100 or 150 feet. It is an uphill grade to the highway.

'When the automobile stalled, the front end of the automobile was on the highway and the back end was on the road going into the driveway. It was partly on and partly off. The front of my car was just a little back from the center line, just a little east of the center line. The car was sitting on a 45 degree angle. The highway in the direction of the airport grill was slightly downgrade.

'When my car stalled, I tried to start it, two or three times, and one time when I hit the starter, the lights went completely out, so I knew the battery was pretty weak, or about gone. I released my foot from the starter and the lights came back on. At that time my lights were on full beam. They were bright and shining approximately 200 feet.'

On cross-examination defendant testified that his engine stalled, and 'from then on the battery was dead, it would not turn, it would not start the car. It was so weak that I turned my lights off to save the battery. ' He tried to start his car two or three times without success. He knew his battery was weak or about gone. He told his wife to hold the steering wheel so he could push. He began pushing the car. His wife said she saw lights coming from the rear. He got in his car, turned on the lights and closed the door. He then looked in the rear-view mirror to see if there was an oncoming car, his wife screamed, and in about five seconds the car hit his car. Defendant testified his car was green, chrome trimmed, the taillights had chrome and were of the reflector type, and there was scotch-light on the bumper, which reflected red and yellow. He said it may have beem 8 or 10 minutes from the time his car stalled until the collision.

We have not stated all of the defendant's evidence for the very simple reason that 'in ruling upon a motion for an involuntary judgment of nonsuit under the statute after all the evidence on both sides is in, 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, 51 S.E.2d 307, 310.

Accepting plaintiff's evidence as true, and considering it with the liberality that we are required to do on a motion for judgment of involuntary nonsuit, it is clear that plaintiff's evidence, and so much of the defendant's testimony as is favorable to him, suffices to make out a case of actionable negligence against the defendant.

It is well settled law in this jurisdiction that a motion for judgment of nonsuit on the ground of contributory negligence will be granted only when the plaintiff's own evidence establishes the facts necessary to show contributory negligence so clearly that no other conclusion may be reasonably drawn therefrom. Mallette v. Cleaners, Inc., 245 N.C. 652, 97 S.E.2d 245; Blevins v. France, 244 N.C. 334, 93 S.E. 2d 549; Bundy v. Powell, supra. To allow an involuntary nonsuit on the ground of contributory negligence, the plaintiff must have proved himself out of court. Barlow v. City Bus Lines, 229 N.C. 382, 49 S.E.2d 793; Phillips v. Nessmith, 226 N.C. 173, 37 S.E.2d 178; Lincoln v. Atlantic Coast Line R. Co., 207 N.C. 787, 178 S.E. 601.

'Discrepancies and contradictions, even in plaintiff's evidence, are for the twelve and not for the court. ' Barlow v. City Bus Lines, supra [229 N.C. 382, 49 S. E.2d 794]. If different inferences may be drawn from the...