Brafford v. Cook

62 S.E.2d 327 (1950)

232 N.C. 699

BRAFFORD v. COOK.

No. 525.

Supreme Court of North Carolina.

November 22, 1950.

*328 J. L. Hamme, Gastonia, for plaintiff, appellant.

James Mullen, Gastonia, for defendant, appellee.

STACY, Chief Justice.

It would seem that the trial court was influenced by the defendant's evidence in sustaining his demurrer and entering a compulsory nonsuit. However, as the defendant's evidence is in direct conflict with the evidence of the plaintiff, its credibility is for the jury and it is not to be considered by the court on motion for involuntary nonsuit. Jackson v. Hodges, N.C., 62 S.E.2d 326; Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757.

For present purposes, the plaintiff's evidence is to be taken as true, and he is entitled to every reasonable intendment and legitimate inference fairly deducible therefrom. Howard v. Bell, N.C., 62 S.E.2d 323; Graham v. North Carolina Butane Gas Co., supra; Higdon v. Jaffa, 231 N.C. 242, 56 S.E.2d 661; State v. Blankenship, 229 N.C. 589, 50 S.E.2d 724; Love v. Zimmerman, 226 N.C. 389, 38 S.E.2d 220; State Highway & Public Works Comm. v. Diamond S. S. Transp. Corp., 226 N.C. 371, 38 S.E.2d 214; Davis v. Wilmerding, 222 N.C. 639, 24 S.E.2d 337; Diamond v. McDonald Service Stores, 211 N.C. 632, 191 S.E. 355; Lincoln v. Atlantic Coast Line R. Co., 207 N.C. 787, 178 S.E. 601.

If the defendant came from behind the car in the northern lane at a terrific rate of speed, knocked the plaintiff angling for a distance of 15 yards and was unable to stop his truck under 75 yards from where he struck the plaintiff, as plaintiff's witness says, it would seem to be fairly debatable whether his speed was reasonable and prudent under the conditions then existing. G.S. § 20-141 (a); State v. Blankenship, supra; Steelman v. Benfield, 228 N.C. 651, 46 S.E.2d 829; Baker v. Perrott, 228 N.C. 558, 46 S.E.2d 461; Hoke v. Atlantic Greyhound Corp., 226 N.C. 692, 40 S.E.2d 345; Tarrant v. Pepsi-Cola Bottling Co., 221 N.C. 390, 20 S.E.2d 565; Kolman v. Silbert, 219 N.C. 134, 12 S.E.2d 915. True, the testimony of plaintiff's witness as to the speed of the truck was weakened somewhat on cross-examination, but this would still require a finding to determine the matter. Shell v. Roseman, 155 N.C. 90, 71 S.E. 86. Discrepancies and contradictions, even in plaintiff's evidence, are for the twelve and not for the court. Jackson v. Hodges, supra, and cases cited; Bailey v. Michael, 231 N.C. 404, 57 S.E.2d 372; Barlow v. City Bus Lines, 229 N.C. 382, 49 S.E.2d 793; Emery v. Lititz Mut. Ins. Co., 228 N.C. 532, 46 S.E.2d 309; Lincoln v. Atlantic Coast Line R. Co., supra.

The case seems to be one for the jury. Williams v. Kirkman, N.C., 61 S.E.2d 706; Bailey v. Michael, supra; Lincoln v. Atlantic Coast Line R. Co., supra.

Reversed.