Maddox v. Brown, 523

• Decision Date: 09 June 1950
• Docket Number: No. 523,523
• Court: North Carolina Supreme Court
• Parties: MADDOX, v. BROWN et al.

Page 791

59 S.E.2d 791

232 N.C. 244

MADDOX, v. BROWN et al.

No. 523

Supreme Court of North Carolina.

June 9, 1950

Smathers & Carpenter, Charlotte, for plaintiff, appellee.

Robinson & Jones, Charlotte, for defendants, appellants.

SEAWELL, Justice.

Our view of the record in this case leads us to the conclusion that decision must hinge on the demurrer to plaintiff's evidence and motion to nonsuit. There are numerous exceptions to the admission of evidence; and the charge to the jury is almost completely bracketed with exceptions. We have examined the record closely in these respects and do not find in these exceptions any reason to disturb the verdict.

Our discussion of the legal sufficiency of the evidence to be submitted to the jury, both on the question of defendant's negligence and that of the plaintiff's contributory negligence, must fall within familiar lines.

1. The plaintiff is not required to present a perfect case or evidence free from contradictions in its support in order to recover. Barlow v. City Bus Lines, 229 N.C. 382, 49 S.E.2d 793, 794. In this case Chief Justice Stacy, writing the opinion of the Court, said: 'Discrepencies and contradictions, even in plaintiff's evidence, are for the twelve and not for the court' citing Emery v. Lititz Mut. Ins. Co., 228 N.C. 532, 46 S.E.2d 309; Industrial Bank of Elizabeth City v. Resolute Fire Ins. Co., 223 N.C. 390, 26 S.E.2d 862; Shell v. Roseman, 155 N.C. 90, 71 S.E. 86; numerous authorities to the same effect may be found in the annotation to G.S. § 1-183, at page 233. See also, Potter v. National Supply Co., 230 N.C. 1, 51 S.E.2d 908.

If upon the whole evidence there are inferences tending to support plaintiff's case, that is evidence pointing to the proximate negligence of the defendant, motion for nonsuit cannot be allowed,--the case is for the jury, who alone may judge of its weight; Potter v. National Supply Co., 230 N.C. 1, 51 S.E.2d 908; Thomas v. Thurston Motor Lines, 230 N.C. 122, 52 S.E.2d 377, and cases cited; Gladden v. Setzer, 230 N.C. 269, 52 S.E.2d 804, and cases cited; and dispose of its contradictions and repugnances.

It is familiar law that on demurrer to the evidence and motion to nonsuit, the evidence must be taken in the light most favorable to the plaintiff. Wingler v. Miller, 223 N.C. 15, 25 S.E.2d 160; Ross v. Atlantic Greyhound Corp., 223 N.C. 239, 25 S.E.2d 852; Lindsey v. Speight, 224 N.C. 453, 31 S.E.2d 371; Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Buckner v. Wheeldon, 225 N.C. 62, 33 S.E.2d 480. See cumulative citations under G.S. § 1-183.

The evidence cannot be said to be without reasonable inferences in support of the contention of the plaintiff that the defendant Brown was negligent, and that his negligence was the proximate cause of the injury and death of the intestate. Legitimate inferences from the evidence as a whole may be drawn tending to show that the defendant, after passing the milk truck, continued in the passing lane without returning to his own right-hand lane of traffic, which he might easily have done; that he persisted in following plaintiff's intestate, rider of the motorcycle, and blowing at him either continuously or continually, for approximately 500 feet before overtaking him at the point of collision; and that during said time he was constantly endeavoring to force Maddox out of his path by repeated warnings in order to pass him on the left, when his right lane of traffic was free from obstruction; that during this time, still travelling at the rate of 35 or 40 miles per hour, he brought his bus into a zone near the intersection of a paved highway in which there was an additional danger which duty required an ordinarily prudent man to observe; that very near this intersection he came in contact with the rider of the motorcycle who lost his life by impact with the bus. Physical markings upon the two vehicles support the view that when this occurred the motorcycle rider was still in advance of the bus and received the impact first to the rear of the motorcycle on the curving front of the bus; and the testimony of Mrs. Leggette, a passenger in the bus who looked through the windshield and saw Maddox in advance of the bus and testified he turned his face toward the bus and looked immediately before the collision, goes to the same effect.

The body of Maddox appears from the evidence to have been found very near the center line of the highway. The conclusion may be drawn from this evidence that the defendant did not observe due care in an attempt to pass the rider of the motorcycle to his left; and that the injury and death of Maddox might have been avoided if he had observed that degree of care necessary in negotiating the intersection or that the tragedy might have been avoided if he had decreased his speed and passed him on the right.

2. There is no difference between the negligence of a plaintiff and the negligence of a defendant insofar as the rule of measurement is concerned; both are required to exercise the care which an ordinarily prudent man would observe under the circumstances. But in either event the bare existence of negligence signifies nothing unless it is proximately concerned in producing injury and death.

The earliest case in our Reports recognizing the power of the trial judge to take a case from the jury because of the contributory negligence of the plaintiff is Neal v. Carolina Cent. R. Co., infra.

In ...