Levy v. Carolina Aluminum Co.

59 S.E.2d 632 (1950)

232 N.C. 158

LEVY v. CAROLINA ALUMINUM CO.

No. 607.

Supreme Court of North Carolina.

May 24, 1950.

*634 Morton & Williams, Albemarle, for plaintiff.

R. L. Smith & Sons, Albemarle, for defendant.

DENNY, Justice.

The question posed for our determination, on this appeal, is whether or not upon the evidence adduced in the trial below, the plaintiff was guilty of contributory negligence as a matter of law.

A nonsuit on the ground of contributory negligence should not be granted unless the plaintiff's evidence, taken in the light most favorable to him, so clearly establishes such negligence that no other reasonable inference or conclusion can be drawn therefrom. Dawson v. Seashore Transportation Co., 230 N.C. 36, 51 S.E.2d 921; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Hobbs v. Drewer, 226 N.C. 146, 37 S.E.2d 121; Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Hampton v. Hawkins, 219 N.C. 205, 13 S.E.2d 227; Manheim v. Blue Bird Taxi Corp., 214 N.C. 689, 200 S.E. 382. Neither should a motion for judgment as of nonsuit be allowed, on the ground of contributory negligence, when there is a conflict in the evidence as to the pertinent facts. Bundy v. Powell, supra; Hayes v. Western Union Telegraph Co., 211 N.C. 192, 189 S.E. 499.

The evidence in this case when considered in the light most favorable to plaintiff, as it must be on motion for judgment as of nonsuit, is sufficient to require its submission to the jury on issues of negligence, contributory negligence and damages. Stevens v. Rostan, 196 N.C. 314, 145 S.E. 555; Killough v. Williams, 224 N.C. 254, 29 S.E.2d 697; Hughes v. Thayer, 229 N.C. 773, 51 S.E.2d 488.

The appellee is relying on Cole v. Fletcher Lumber Co., 230 N.C. 616, 55 S.E.2d 86, and similar cases. This case, however, is not controlled by the rule laid down in that case with respect to passing a vehicle at an intersection in violation of G.S. § 20-150(c). The private driveway which the driver of the defendant's truck was attempting to enter was not an intersecting highway within the meaning of the above statute. A highway is defined in G.S. § 20-6, as follows: "`Highway' shall include any trunk line highway, state aid road or other public highway, road, street, avenue, alley, driveway, parkway, or place under the control of the state or any political subdivision thereof dedicated, appropriated or opened to public travel or other use." State v. Gross, 119 N.C. 868, 26 S.E. 91.

The appellee further relies upon G.S. § 20-149(a), which requires the driver of a vehicle in overtaking another vehicle proceeding in the same direction, if he desires to pass such vehicle, to pass at least two feet to the left thereof, etc. It is true the plaintiff's driver attempted to pass the defendant's truck on its right, but it is for the jury to say whether or not, under all the facts and circumstances disclosed by the evidence, he was or was not guilty of contributory negligence in doing so. This identical question was presented in the case of Stevens v. Rostan, supra, where a nonsuit had been granted in the court below. This Court held the case should have been submitted to the jury. When the conduct of the driver of an overtaken vehicle, as *635 well as the conduct of another employee of the defendant riding on such vehicle, is such as might be construed or inferred as an invitation or instruction to the driver of the overtaking vehicle to go ahead and pass to the right, an attempt to pass on the right of such vehicle, under such circumstances, will not be held to be contributory negligence as a matter of law. Stevens v. Rostan, supra.

The judgment of the court below is

Reversed.