Register v. Gibbs, 235
| Decision Date | 11 April 1951 |
| Docket Number | No. 235,235 |
| Citation | 233 N.C. 456,64 S.E.2d 280 |
| Parties | REGISTER, v. GIBBS et al. |
| Court | North Carolina Supreme Court |
J. R. Barefoot, Benson, and Everette L. Doffermyre, Dunn, for plaintiff, appellee.
Neill McK. Salmon, Lillington, for defendants, appellants.
The assignments of error raise this single issue: Did the trial court err in refusing to dismiss the action upon a compulsory nonsuit after all the evidence on both sides was in?
The plaintiff contends that this inquiry should be answered in the negative upon the authority of the decisions defining the duty of a motorist to exercise due care to avoid injuring children whom he sees, or by the exertion of reasonable care could see, on or near the highway. Hughes v. Thayer, 229 N.C. 773, 51 S.E.2d 488; Sparks v. Willis, 228 N.C. 25, 44 S.E.2d 343; Yokeley v. Kearns, 223 N.C. 196, 25 S.E.2d 602; Smith v. Miller, 209 N.C. 170, 183 S.E. 370; Moore v. Powell, 205 N.C. 636, 172 S.E. 327; Goss v. Williams, 196 N.C. 213, 145 S.E. 169. The defendants insist, however, that the query should be answered in the affirmative because the evidence at the trial compels the conclusion that Gibbs was free from actionable negligence as a matter of law. Fox v. Barlow, 206 N.C. 66, 173 S.E. 43.
Undoubtedly the testimony offered by the defendants was sufficient to exonerate them from all legal liability for the death of the plaintiff's intestate under the 'sudden appearance doctrine.' Blashfield's Cyclopedia of Automobile Law and Practice (Perm.Ed.), section 1498. Moreover, much of the evidence presented by the plaintiff harmonized with that of the defendants. But these considerations, in and of themselves, did not entitle the defendants to an involuntary nonsuit in the court below.
In determining the legal sufficiency of testimony to withstand a motion for a compulsory nonsuit after all the evidence on both sides is in, the testimony is interpreted most favorably to plaintiff, and most strongly against defendant. Thus all facts in evidence, whether introduced by plaintiff or defendant, which make for the plaintiff's claim or tend to support his cause of action are assumed to be true. Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307. Furthermore, plaintiff is given the benefit of every inference favorable to him that can be legitimately drawn from such facts. Graham v. North Carolina Gas Co., 231 N.C. 680, 58 S.E.2d 757. If there are contradictions or discrepancies in the testimony offered by plaintiff, they are resolved in his favor. Bailey v. Michael, 231 N.C. 404, 57 S.E.2d 372; Thomas v. Thurston Motor Lines, 230 N.C. 122, 52 S.E.2d 377. Any evidence presented by defendant which contradicts that of plaintiff, or tends to establish a different state of facts is ignored. Bundy v. Powell, supra.
When the testimony at the trial is subjected to these rules, it makes out this case for the plaintiff:
1. Route 82 is a paved highway, 20 feet in width, with earth shoulders 4 or 5 feet wide on each side, and without adjacent sidewalks. It courses northwardly and southwardly through a small hamlet near Tart's Mill in Harnett County, where the decedent's parents and their near neighbor, Earl Coats, reside. The hamlet consists of a cluster of about 15 dwellings fronting the roadway. The home of the decedent's parents and that of Coats are located on the east side of the highway. The front yard at the Coats' residence has a depth of only 30 feet. At the time of the accident, a passenger carrying automobile, which belonged to Cecil Bagley and which was headed north, stood on the right side of the highway in front of the premises occupied by Coats, half on the pavement and half on the adjacent earth shoulder. Notwithstanding, a motorist traveling northward on Route 82 at that time had an unobstructed view of the entire front yard at the Coats residence, and of all the highway before him, except the narrow strip immediately in front of the Bagley car, for a distance of at least 900 feet.
2. On the afternoon of the accident, the decedent, a small boy aged six years, and three other little children were playing near the east edge of Route 82 in the front yard at the Coats residence. The decedent suddenly abandoned his...
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Powell v. Daniel
...negligent in the operation of his automobile in these respects: (1) That he failed to keep a reasonably careful lookout, Register v. Gibbs, 233 N.C. 456, 64 S.E.2d 280; (2) that he failed to keep his automobile under reasonable control, Hansley v. Tilton, 234 N.C. 3, 65 S.E.2d 300; and (3) ......
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Simmons v. Rogers
...be taken as true and must be considered in the light most favorable to him. Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Register v. Gibbs, 233 N.C. 456, 64 S.E.2d 280; Sessoms v. McDonald, 237 N.C. 720, 75 S.E.2d 904; Whitley v. Jones, 238 N.C. 332, 78 S.E.2d As pointed out in Erwin v. Ca......
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Rice v. City of Lumberton
...53 S.E.2d 251; Carson v. Doggett, 231 N.C. 629, 58 S.E.2d 609; Ervin v. Cannon Mills Co., 233 N.C. 415, 64 S.E.2d 431; Register v. Gibbs, 233 N.C. 456, 64 S.E.2d 280. Therefore, taking the evidence offered by the plaintiff, and so much of defendant's evidence as is favorable to the plaintif......
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Watt v. Crews, 472
...judgment as of nonsuit and considered in the light most favorable to it. Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Register v. Gibbs, 233 N.C. 456, 64 S.E.2d 280; Bridges v. Graham, supra; Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E.2d Among this appellant's 64 assignments o......