Singletary v. Nixon

• Decision Date: 17 March 1954
• Docket Number: No. 100,100
• Citation: Singletary v. Nixon, 239 N.C. 634, 80 S.E.2d 676 (N.C. 1954)
• Court: North Carolina Supreme Court
• Parties: SINGLETARY, v. NIXON et al.

Page 676

80 S.E.2d 676

239 N.C. 634

SINGLETARY, v.NIXON et al.

No. 100

Supreme Court of North Carolina.

March 17, 1954

John M. King and Thorp & Thorp, Rocky Mount, for plaintiffappellant.

E. J. Wellons, Smithfield, and Cooley & May, Nashville, for defendantappellees.

BARNHILL, Chief Justice.

When a motion to dismiss an action as in case of involuntary nonsuit comes on to be heard at the conclusion of all the evidence, as here, the question should be decided upon a consideration of all the evidence.G.S. § 1-183;Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209.

This rule, however, is subject to certain limitations: (a) the evidence is to be taken in the light most favorable to the plaintiff and he is entitled to the benefit of every reasonable inference to be drawn therefrom; (b) so much of the defendant's evidence as is favorable to the plaintiff or tends to explain or make clear that which has been offered by the plaintiff, may be considered; but (c) that which tends to establish another and a different state of facts or which tends to contradict or impeach the evidence offered by plaintiff is to be disregarded.Otherwise consideration would not be in the light most favorable to the plaintiff.Atkins v. White Transportation Co., supra, and cases cited.

Considering the evidence contained in this record, it may be that, non constat these limitations, some of the testimony offered by defendants might well be considered on their motion for judgment of nonsuit entered at the conclusion of all the testimony.The defendants offered evidence tending to show the location and color of the tractor and trailer--the tractor was green and the trailer was red.This was not denied by plaintiff other than in his statement that the vehicle appeared to him to be the same color as the road.They likewise offered evidence tending to show that one of their employees was on the south side of the truck directing traffic and that when plaintiff approached he waved his light at plaintiff until he had to jump out of the road to keep from being run over; and that the truck was not moving at the time of the wreck.

Be that as it may, we need not--and do not--consider this testimony for the reason, in part, plaintiff's own description of the unfortunate mishap discloses that he was guilty of contributory negligence as a matter of law.This required a dismissal of the action.

It is established law in this jurisdiction that a judgment of involuntary nonsuit on the grounds of contributory negligence will not be sustained or directed unless the evidence is so clear on that issue that no other conclusion seems to be permissible.Atkins v. White Transportation Co., supra, and cases cited;Samuels v. Bowers, 232 N.C. 149, 59 S.E.2d 787;Levy v. Carolina Aluminum Co., 232 N.C. 158, 59 S.E.2d 632;Goodson v. Williams, 237 N.C. 291, 74 S.E.2d 762;Mikeal v. Pendleton, 237 N.C. 690, 75 S.E.2d 756.

In this connection it may be said that it is presumed reasonable men draw reasonable conclusions, so that the inferences contemplated are logical inferences reasonably sustained by the evidence when considered in the light most favorable to the plaintiff.Atkins v. White Transportation Co., supra.

The hub of our motor vehicle traffic regulations is contained in G.S. § 20-140, 141.Under the provisions of these sections a motorist must at all times operate his vehicle with due regard to the width, traffic, and condition of the highway, and he must decrease speed and keep his car under control 'when special hazard exists * * * by reason of weather or highway conditions, and speed shall be decreased as may be necessary to avoid colliding with any * * * vehicle, or other conveyance on * * * the highway * * *'G.S. § 20-141;Brown v. W. B. & S. Bus Lines, 230 N.C. 493, 53 S.E.2d 539;Riggs v. Akers Motor Lines, 233 N.C. 160, 63 S.E.2d 197;Williams v. Henderson, 230 N.C. 707, 55 S.E.2d 462;Matheny v. Central Motor Lines, 233 N.C. 673, 65 S.E.2d 361.

And, specifically, he must (1) when he operates his vehicle during the night time, take notice of the existing darkness which limits visibility to the distance his headlights throw their rays and he must operate his motor vehicle in such manner and at such speed as will enable him to stop within the radius of his headlights (but seech. 1145, S.L. 1953); (2) keep an outlook in the direction of travel and he is held to the duty of seeing...