Wall v. Bain
| Decision Date | 16 December 1942 |
| Docket Number | 685. |
| Citation | 23 S.E.2d 330,222 N.C. 375 |
| Parties | WALL v. BAIN. |
| Court | North Carolina Supreme Court |
[Copyrighted Material Omitted]
Z.H Howerton and Harry R. Stanley, both of Greensboro, for plaintiff, appellant.
Sapp Sapp & Atkinson, of Greensboro, for defendant, appellee.
The appeal presents two questions: Whether there was any evidence of negligence on the part of defendant to take the case to the jury, and whether the conduct of the boy who met his death in the accident was, as a matter of law, contributorily negligent.
There could be little dispute as to the principles of law involved in the decision of these questions. It is true, as suggested in defendant's brief, that what constitutes negligence is a matter of law; and this principle will be applied in examining plaintiff's evidence on a question of nonsuit. But there are other more searching formulae to be applied before the Court comes to a conclusion.
In passing upon the negligence of the defendant on a motion to nonsuit, it is elementary that the evidence must be taken in the light most favorable to the plaintiff and that plaintiff is entitled to all reasonable inferences therefrom. Heilig v. Home Security Life Ins. Co., 222 N.C. 231, 22 S.E.2d 429; Gorham v. Pacific Mut. Life Insurance Co., 214 N.C. 526, 200 S.E. 5; Inge v. Seaboard Airline R. Co., 192 N.C. 522, 135 S.E. 522. While the statute, C.S. § 567, requires a consideration of the whole evidence, it is clear that only that part of the defendant's evidence which is favorable to the plaintiff can be taken into consideration, since, otherwise, the Court would necessarily pass upon the weight of the evidence, the credibility of which rests solely with the jury. Davidson v. Western Union Telegraph Co., 207 N.C. 790, 178 S.E. 603. Taking the case away from the jury, while a duty sometimes unavoidable, is always a delicate task, involving much more than a strong feeling that the plaintiff ought not to recover. The power of the Court is limited to the ascertainment whether there is any evidence at all which has probative value in any or all of the facts and circumstances offered in the guise of proof. Willis v. Atlantic & D.R. Co., 122 N.C. 905, 908, 29 S.E. 941; Gates v. Max, 125 N.C. 139, 34 S.E. 266. It is not a matter of passing upon the weight of evidence when it has weight. That power is denied us. Willis v. Atlantic & D.R. Co., supra. It is a matter of dropping the proffered proof into evenly poised balances to see whether it weighs against nothing. Cox v. Norfolk & C.R. Co., 123 N.C. 604, 31 S.E. 848, and cited cases. The result often brings a consequence not to be desired, sometimes not even consonant with our sense of justice, but when it is shocking to the conscience, the judges of the superior court have a remedy with which we are not entrusted. C.S. § 591; Anderson v. Holland, 209 N.C. 746, 184 S.E. 511; Brantley v. Collie, 205 N.C. 229, 231, 171 S.E. 88.
It is amazing how many cases may be marshalled on either side of this difficult proposition, supposed to be on all fours with the case presented for decision. But the variations in factual situations are practically unlimited, and while these cases are often valuable as repeating and emphasizing general principles of law applicable to the subject, nevertheless, as precedents for the evaluation of the evidence in any particular case, for the most part, from the very nature of the thing, they speak with uncertain authority. It is the privilege of the Court to make its own appraisal of the instruments of proof in each case as the circumstances may demand, under the guidance of the principles by which its powers are defined and limited.
In the case at bar, the Court is of the opinion that there is evidence from which the jury might infer negligence on the part of the defendant.
No reasonable person would move along the highway in reverse for any length of time, and in the wrong traffic lane, as a preferable mode of travel. That would be negligence per se. But although the defendant had not undertaken such an unusual feat, and had not gone far, he was, nevertheless, backing his truck along the street in a traffic lane devoted to travel in the opposite direction--an operation which involved a greater danger than ordinary travel, both because of the probability of oncoming traffic and the limited opportunity for outlook; and in protection of that movement, he must exercise ordinary care. To bring him within the protection of the rule of the ordinarily prudent man, that care should have been adequate to the danger involved. It is to be noted that the defendant might have turned into the driveway he intended to use by a forward movement, and the city ordinance required him to do so. Instead, he chose to drive completely past the driveway, stop and back up the street--a movement the necessity of which is unexplained. Having chosen this mode of operation, his own statement is that he looked back up the street on his own side, and Joe Williams looked up on his side, and neither saw anyone coming; whereupon, he proceeded with the backward movement of the truck up the street.
The requirements of prudent operation are not necessarily satisfied when the defendant "looks" either preceding or during the operation of his car. It is the duty of the driver of a motor vehicle not merely to look, but to keep an outlook in the direction of travel; and he is held to the duty of seeing what he ought to have seen. In Taulborg v. Andresen, 119 Neb. 273, 228 N.W. 528 531, 67 A.L.R. 642, this duty is expressed as follows: ...
To continue reading
Request your trial