Fowler v. Atlantic Co.

Annotate this Case

67 S.E.2d 496 (1951)

234 N.C. 542

FOWLER v. ATLANTIC CO., Inc.

No. 382.

Supreme Court of North Carolina.

November 21, 1951.

*497 Adams, Dearman & Wineberry, Statesville, for plaintiff, appellant.

Land, Sowers & Avery, and W. I. Ward, Jr., Statesville, for defendant, appellee.

JOHNSON, Justice.

The evidence adduced below, when viewed in its light most favorable to the plaintiff, as is the rule on motion to nonsuit, leaves the impression that the plaintiff made out a prima facie case of actionable negligence for the jury. Ervin v. Cannon Mills Co., 233 N.C. 415, 64 S.E.2d 431; Brafford v. Cook, 232 N.C. 699, 62 S.E.2d 327; Howard v. Bell, 232 N.C. 611, 62 S.E.2d 323.

Undoubtedly, the court below allowed the defendant's motion on the theory that plaintiff's driver was contributorily negligent as a matter of law. It may be conceded that certain aspects of the testimony *498 tend to support the view that the plaintiff's driver may have failed to exercise due care in the circumstances: It was in evidence that the defendant's truck was first in the intersection and in the act of turning into the side street before the plaintiff's car reached the intersection. Even so, the uncontradicted evidence is that the driver of the truck failed to give any signal of his intention to turn left in front of the plaintiff's approaching car, as required by G.S. §§ 20-155 and 20-154.

This is not a case where a vehicle approaching from a side street has a favored position by virtue of having entered the intersection first. Yellow Cab Co. v. Sanders, 223 N.C. 626, 27 S.E.2d 631, and G.S. § 20-155(a). Here, the vehicles were meeting as they approached the intersection. Hence, the applicable statutes are G.S. §§ 20-155(b) and 20-154.

While this record may be sufficient to sustain the inference that the plaintiff's driver, in the exercise of due care, should have seen the truck in the act of turning in time to have stopped short of the intersection, nevertheless, the record also supports the opposite inference,that in the absence of a signal by the truck driver of his intention to turn, the plaintiff's driver, in the exercise of due care, may have been unable to stop in time to avert the collision. This makes it a case for the jury. "Discrepancies and contradictions, even in plaintiff's evidence, are for the twelve and not for the court." Brafford v. Cook, supra, 232 N.C. 699, at page 701, 62 S.E.2d 327, at page 328; Maddox v. Brown, 233 N.C. 519, 64 S.E.2d 864. See also Piner v. Richter, 202 N.C. 573, 163 S.E. 561.

A motion to nonsuit on the ground of contributory negligence may be allowed when, and only when, no other reasonable inference is deducible from the evidence. Ervin v. Cannon Mills Co., supra, 233 N.C. 415, 64 S.E.2d 431; Grimm v. Watson, 233 N.C. 65, 62 S.E.2d 538; 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; Cole v. Koonce, 214 N.C. 188, 198 S.E. 637.

Reversed.