Taney v. Brown, 27

• Decision Date: 23 September 1964
• Docket Number: No. 27,27
• Citation: 137 S.E.2d 827,262 N.C. 438
• Parties: Grace Brown TANEY v. Ferd BROWN.
• Court: North Carolina Supreme Court

Page 827

137 S.E.2d 827

262 N.C. 438

Grace Brown TANEY v. Ferd BROWN.

No. 27

Supreme Court of North Carolina.

Sept. 23, 1964

McMichael, Griffin & Rankin, Reidsville, and Crowell & Crowell, Hendersonbille, by

Hugh P. Griffin, Jr., Reidsville, for defendant appellant.

Whitmire & Whitmire, by R. Lee Whitmire, Hendersonville, for plaintiff appellee.

PARKER, Justice.

When this action came on to be heard in the general county court, the parties, pursuant to the provisions of G.S. § 1-184 et seq., waived trial by jury. On defendant's appeal to the superior court, Judge McLean overruled all of defendant's assignments of error and affirmed the judgment of the general county court. Defendant assigns as errors Judge McLean's denial of his motion for judgment of compulsory nonsuit made at the close of plaintiff's case and his denial of a like motion renewed at the close of all the evidence, and his entering a judgment affirming the judgment of the general county court.

Defendant has no exception to the admission of evidence or to the findings of fact or to the conclusions of law. Consequently, such findings of fact are presumed to be supported by competent evidence and are binding upon appeal. Schloss v. Jamison, 258 N.C. 271, 128 S.E.2d 590; City of Goldsboro v. Atlantic Coast Line R. Co., 246 N.C. 101, 97 S.E.2d 486; James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759. By reason of such facts above stated, defendant's motion for judgment of compulsory nonsuit renewed at the close of all the evidence does not 'present the question as to whether or not the findings of fact are supported by competent evidence. ' City of Goldsboro v. Atlantic Coast Line R. Co., supra; G.S. § 1-183; Clifton v. Turner, 257 N.C. 92, 125 S.E.2d 339.

This Court said in City of Raleigh v. Morand, 247 N.C. 363, 100 S.E.2d 870; 'Likewise, since no exceptions were taken to the findings of fact or conclusions of law, the exception to the refusal of the court to grant the appellants' motion for judgment as of nonsuit presents no question for review with respect to the findings of fact or the conclusions of law. City of Goldsboro v. Atlantic Coast Line R. Co., supra [246 N.C. 101, 97 S.E.2d 486]. The exception to the signing of the judgment, however, does present these questions: (1) Do the facts found support the conclusions of law and the judgment entered thereon, and (2) does any error appear upon the face of the record?'

Defendant contends in essence that the findings of fact do not support the conclusion of law that the defendant's negligence 'was the immediate, direct, and sole proximate cause of the injuries and damage sustained by the plaintiff,' and the judgment entered in her favor. He contends that the sole and only conclusion of law that can be made upon the findings of fact is that plaintiff was negligent in attempting to pass defendant's truck at an intersection in violation of G.S. § 20-150(c), and in not reducing her speed and keeping her automobile under control in violation of G.S. § 20-141(c), and that such negligence proximately contributed to her injuries, and that such a necessary conclusion of law will not support a judgment in plaintiff's behalf, but will only support a judgment barring any recovery by her in this action.

Defendant further contends that the facts found do not support the conclusion of law 'that the intersection of the rural road with Highway 158 was not an 'Intersecting highway' within the meaning of' G.S. § 20-150 (c).

It is a fundamental principle that the only contributory negligence of legal importance is contributory negligence which proximately causes or contributes to the injury under judicial investigation. Short v. Chapman, 261 N.C. 674, 136 S.E.2d 40. 'The very term 'contributory negligence' ex vi termini implies or presupposes negligence on the part of the defendant. ' Carolina Scenic Stages v. Lowther, 233 N.C. 555, 64 S.E.2d 846.

The unchallenged findings of fact amply support the conclusion of law that defendant was guilty of actionable negligence. Carolina Cas. Insurance Co. v. Cline, 238 N.C. 133, 76 S.E.2d 374; Grimm v. Watson, 233 N.C. 65, 62 S.E.2d 538; Howard v. Bingham, 231 N.C. 420, 57 S.E.2d 401.

A question presented for decision is: Do these unchallenged findings of fact support the legal conclusion that defendant's negligence was the immediate, direct, and sole proximate cause of plaintiff's injuries? What is the proximate cause of an injury is ordinarily a question for a jury. It is to be determined as a fact from the attendant circumstances. Conflicting inferences of cusation arising from the evidence carry the case to the jury. Pruett v. Inman, 252 N.C. 520, 114 S.E.2d 360. But in the instant case the waiver of a jury trial by the parties invested the trial judge with the dual capacity of judge and juror, and it was his duty to weigh the evidence, find the facts, and upon the conflicting inferences of causation of plaintiff's injuries here to draw the inferences; the ultimate issue was for him. Turnage Co. v. Morton, 240 N.C. 94, 81 S.E.2d 135; Bizzell v. Bizzell, 247 N.C. 590, 101 S.E.2d 668; Everette v. D. O. Briggs Lumber Co., 250 N.C. 688, 110 S.E.2d 288.

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