Mallette v. Ideal Laundry & Dry Cleaners, Inc.

• Decision Date: 20 March 1957
• Docket Number: No. 169,169
• Citation: 97 S.E.2d 245,245 N.C. 652
• Court: North Carolina Supreme Court
• Parties: Henry H. MALLETTE, Jr. v. IDEAL LAUNDRY and DRY CLEANERS, Inc.

Page 245

97 S.E.2d 245

245 N.C. 652

Henry H. MALLETTE, Jr. v. IDEAL LAUNDRY and DRY CLEANERS, Inc.

No. 169

Supreme Court of North Carolina.

March 20, 1957

W. K. Rhodes, Jr., Wilmington, for plaintiff, appellant.

Poisson, Campbell & Marshall, Wilmington, for defendant, appellee.

JOHNSON, Justice.

Civil action in tort arising out of collision of two motor vehicles in a street intersection.

At the close of the plaintiff's evidence the defendant moved for judgment as of nonsuit on the stated ground that the plaintiff's evidence discloses he was contributorily negligent as a matter of law. The motion was allowed. The single question presented for review is whether this ruling was correct.

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. Wright v. Pegram, 244 N.C. 45, 92 S.E.2d 416; Donlop v. Snyder, 234 N.C. 627, 68 S.E.2d 316; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307.

In analyzing and testing the plaintiff's evidence to see if it discloses contributory negligence as a matter of law, the trial court is required to take for granted that the evidence favorable to the plaintiff is true and give to it every reasonable intendment favorable to the plaintiff. Donlop v. Snyder, supra; Powell v. Lloyd, 234 N.C. 481, 67 S.E.2d 664; Bundy v. Powell, supra. All conflicts in plaintiff's evidence are to be resolved in favor of the plaintiff, Bundy v. Powell, supra; Scarborough v. Calypso Veneer Co., 244 N.C. 1, 92 S.E.2d 435, the rule being that contradictions and discrepancies are for the jury and not the court. Donlop v. Snyder, supra; Fowler v. Atlantic Co., 234 N.C. 542, 67 S.E.2d 496; Maddox v. Brown, 232 N.C. 244, 59 S.E.2d 791.

The collision occurred in the daytime at the intersection of Eighth and Ann Streets in a residential district of the City of Wilmington. Eighth Street runs north and south; Ann, east and west. Each street is about 30 feet wide. Eighth Street is paved, whereas Ann is an unimproved dirt street. There is a dwelling house on the southwest corner of the intersection. The set back distances of the house are not shown by the evidence, except by photographs. These indicate that the house is relatively close to both streets at the intersection, thus leaving a limited side-view sight distance for motorists approaching the intersection on either street. The evidence discloses no stop sign on the side of either street-approach to the intersection, nor any traffic control device over the center of the intersection. Therefore, upon the record as presented neither street was favored over the other, and the evidence is to be interpreted in the light of G.S. § 20-155, which provides in part:

'(a) When two vehicles approach or enter an intersection and/or junction at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right * * *.

'(b) The driver of a vehicle approaching but not having entered an intersection and/or junction, shall yield the right-of-way to a vehicle already within such intersection and/or junction whether the vehicle in the junction is proceeding straight ahead or turning in either direction: * * *.'

The plaintiff was driving a Cadillac automobile northwardly on Eighth Street. The defendant's laundry truck was being driven eastwardly on Ann Street. Therefore, as the two vehicles approached the intersection the Cadillac driven by the plaintiff was on the right.

The plaintiff testified in part: 'As I got to the corner I saw the Laundry truck approximately 35 or 40 feet around the corner. * * * I was traveling at approximately 15 to 20 miles an hour at the time * * * of the accident. * * * I was in the intersection when I first saw the vehicle with which I had the collision. There is a house sitting on the corner, and when I got close enough to see, I saw this vehicle coming beyond the...