McClamrock v. White Packing Co.

• Citation: 78 S.E.2d 749,238 N.C. 648
• Decision Date: 25 November 1953
• Docket Number: No. 385,385
• Parties: McCLAMROCK v. WHITE PACKING CO. (two cases}.
• Court: North Carolina Supreme Court

Page 749

78 S.E.2d 749

238 N.C. 648

McCLAMROCK v. WHITE PACKING CO. (two cases}.

No. 385

Supreme Court of North Carolina.

Nov. 25, 1953

Linn & Shuford, Salisbury, for plaintiffs, appellants.

Woodson & Woodson, Salisbury, Carpenter & Webb, Charlotte, for defendant, appellee

DEVIN, Chief Justice.

As the plaintiffs undoubtedly offered evidence tending to show that the defendant was negligent on this occasion, the judgment of nonsuit must be interpreted as having been based on the theory of the contributory negligence of the plaintiff Mrs. McClamrock.

The burden of proof upon the issue of contributory negligence is upon the defendant; hence it is the settled rule in this jurisdiction that judgment of nonsuit on this ground can be rendered only when a single inference, leading to that conclusion, can be drawn from the evidence. Lyerly v. Griffin, 237 N.C. 686, 75 S.E.2d 730; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Hampton v. Hawkins, 219 N.C. 205, 13 S.E.2d 227; Harrison v. North Carolina R. Co., 194 N.C. 656, 140 S.E. 598.

It was said in Moseley v. Atlantic Coast Line R. Co., 197 N.C. 628, 635, 150 S.E. 184, 188, 'A serious and troublesome question is continually arising as to how far a court will declare certain conduct of a defendant negligence and certain conduct of a plaintiff contributory negligence, and take away the question of negligence and contributory negligence from the jury.' As was pointed out by Chief Justice Stacy in Tyson v. Ford, 228 N.C. 778, 47 S.E.2d 251, the question of contributory negligence in cases growing out of rear-end collisions at night with unlighted trucks on the highway is frequently fraught with difficulty. The line of demarcation is not always easy to be drawn between those cases controlled by the doctrine announced in Weston v. Southern R. Co., 194 N.C. 210, 139 S.E. 237, where the speed at which the plaintiff drives his automobile exceeds the radius of his lights, and those cases where unusual circumstances tend to affect the determination of the question of reasonable prudence as applied to the exigencies of the occasion, and to carry the case to the jury.

As illustrating the application of the rule in Weston v. Southern R. Co. we note the following cases in which nonsuit on the ground of contributory negligence was upheld Morgan v. Cook, 236 N.C. 477, 73 S.E.2d 296; Morris v. Jenrette Transport Co., 235 N.C. 568, 70 S.E.2d 845; Cox v. Lee 230 N.C. 155, 52 S.E.2d 355; Parkway Bus Co. v. Coble Dairy Products Co., 229 N.C. 352, 49 S.E.2d 623; McKinnon v. Howard Motor Lines, 228 N.C. 132, 44 S.E.2d 735; Caulder v. Gresham, 224 N.C. 402, 30 S.E.2d 312; Allen v. Dr. Pepper Bottling Co., 223 N.C. 118, 25 S.E.2d 388; Pike v. Seymour, 222 N.C. 42, 21 S.E.2d 884; Austin v. Overton, 222 N.C. 89, 21 S.E.2d 887; Beck v. Hooks 218 N.C. 105, 10 S.E.2d 608; Lee v. Atlantic Coast Line R. Co., 212 N.C. 340, 193 S.E. 395.

On the other hand there are numerous decisions of this Court where the evidence, tending to show some unusual or unexpected condition affecting the question of reasonable prudence on the part of the driver, has been held sufficient to present a case for the jury. Among those we note: Chaffin v. Brame, 233 N.C. 377, 64 S.E.2d 276; Thomas v. Thurston Motor Lines, 230 N.C. 122, 52 S.E.2d 377; Barlow v. City Bus Lines, 229 N.C. 382, 49 S.E.2d 793; Cummins v. Southern Fruit Co., 225 N.C. 625, 36 S.E.2d 11; Leonard v. Tatum & Dalton Transfer Co., 218 N.C. 667, 12 S.E.2d 729; Clarke v. Martin, 215 N.C. 405, 2 S.E.2d 10; Page v. McLamb, 215 N.C. 789, 3 S.E.2d 275; Cole v. Koonce, 214 N.C. 188, 198 S.E. 637; Williams v. Frederickson Motor Express Lines, 198 N.C. 193, 151 S.E. 197.

Without attempting to analyze and distinguish the reasons underlying the decisions in those cases which we have cited, they illustrate the fact that frequently the point of decision was affected by concurrent circumstances, such as fog, smoke, rain, glaring lights, color of vehicles and road surfact in the night, and that these conditions must be taken into consideration in determining the questions of contributory negligence and proximate cause.

Where the factors of decisions are numerous and complicated it is difficult to draw a definite and satisfactory line of distinction. As was said by Justice Seawell in Cole v. Koonce, 214 N.C. 188, 198 S.E. 637, 639, 'Practically every case must 'stand on its own bottom'.'

It may be noted that the Legislature by Ch. 1145, Session Laws 1953, added to subsection (e), G.S. § 20-141, a clause which provides that the failure to...