Bailey v. Michael

57 S.E.2d 372 (1950)

231 N.C. 404

BAILEY v. MICHAEL et al.

No. 665.

Supreme Court of North Carolina.

February 3, 1950.

*373 Sim A. DeLapp, Hubert E. Olive and Stoner & Wilson, Lexington, for plaintiff.

Joe H. Leonard and Don A. Walser, Lexington, for defendants.

*374 DENNY, Justice.

The defendants assign as error the refusal of the Court below to sustain their motion for judgment as of nonsuit on the ground that the plaintiff's intestate was guilty of contributory negligence as a matter of law, citing Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88; Henson v. Wilson, 225 N.C. 417, 35 S.E.2d 245; Tyson v. Ford, 228 N.C. 778, 47 S.E.2d 251; Cox v. Lee, 230 N.C. 155, 52 S.E.2d 355, and G.S. § 20-158.

A motion for judgment as of nonsuit on the ground of contributory negligence on the part of a plaintiff or his intestate in actions for wrongful death, will not be granted if it is necessary to rely either in whole or in part on testimony offered by the defense to sustain the plea of contributory negligence. Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307, and cited cases.

The burden of proof on the issue of contributory negligence being on the defendants, they were not entitled to a judgment as of nonsuit, unless the plaintiff's evidence, taken in the light most favorable to him, so clearly established such negligence that no other reasonable inference or conclusion could be drawn therefrom. Dawson v. Seashore Transportation Co., 230 N.C. 36, 51 S.E.2d 921; Hobbs v. Drewer, 226 N.C. 146, 37 S.E.2d 121; Cummins v. Southern Fruit Co., 225 N.C. 625, 36 S.E.2d 11; McCrowell v. Southern R. Co., 221 N.C. 366, 20 S.E.2d 352; Godwin v. Atlantic Coast Line R. Co., 220 N.C. 281, 17 S.E.2d 137; Hampton v. Hawkins, 219 N.C. 205, 13 S.E.2d 227; Hayes v. Western Union Telegraph Co., 211 N.C. 192, 189 S.E. 499.

The evidence of the plaintiff and the defendants is in sharp conflict, but, as said by Stacy, C. J., in Barlow v. City Bus Lines, 229 N.C. 382, 49 S.E.2d 793, 794: "It is only when the plaintiff proves himself out of court that nonsuit may be entered on the issue of contributory negligence. Phillips v. Nessmith, 226 N.C. 173, 37 S.E.2d 178; Lincoln v. Atlantic Coast Line R. Co., 207 N.C. 787, 178 S.E. 601. Discrepancies and contradictions, even in plaintiff's evidence, are for the twelve and not for the court. Emery v. Lititz Mut. Ins. Co., 228 N.C. 532, 46 S.E.2d 309; Industrial Bank of Elizabeth City v. Resolute Fire Ins. Co., 223 N.C. 390, 26 S.E.2d 862; Shell v. Roseman, 155 N.C. 90, 71 S.E. 86." This is in accord with what was said in Battle v. Cleave & Rogers, 179 N.C. 112, 101 S.E. 555, by Hoke, J., and quoted with approval by Brogden, J., in Williams v. Frederickson Motor Express Lines, 198 N.C. 193, 151 S.E. 197, 198, as follows: "The burden of showing contributory negligence, however, is on the defendant, and the motion for nonsuit may never be allowed on such an issue where the controlling and pertinent facts are in dispute, nor where opposing inferences are permissible from plaintiff's proof, nor where it is necessary in support of the motion to rely, in whole or in part, on evidence offered for the defense."

The defendants contend, however, that the failure of plaintiff's intestate to bring his car to a complete stop before entering the intersection was a violation of G.S. § 20-158. Conceding the failure of plaintiff's intestate to stop his car before entering the intersection, we have held that failure to observe a stop sign is not negligence per se or prima facie negligence, but only evidence thereof, which may be considered by the jury, along with the other facts and circumstances adduced by the evidence, in passing upon the question of negligence. Hill v. Lopez, 228 N.C. 433, 45 S.E.2d 539; Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239; Groome v. Davis, 215 N.C. 510, 2 S.E.2d 771.

The authorities relied upon by the appellants are not controlling on this record. While it is true that sometimes the physical facts speak louder than the witnesses, Powers v. S. Sternberg & Co., supra; but where the driver of a car is seriously or fatally injured in a collision, the control or lack of control exercised by such driver in bringing the car to a stop after the collision, is ordinarily but a circumstance to be considered by the jury together with the other facts and circumstances adduced by the evidence, in passing upon the question of negligence or contributory *375 negligence. The facts in this case warranted the submission of the issue of contributory negligence to the twelve.

The defendants also demurred ore tenus in this Court, to the plaintiff's complaint on the ground that it fails to allege that the action was instituted within one year of his intestate's death. The demurrer is overruled. Colyar, Adm'x, v. Motor Lines, 231 N.C. 318, 56 S.E.2d 647.

In the trial below, we find

No error.