Gasperson v. Rice

83 S.E.2d 665 (1954)

240 N.C. 660

W. W. GASPERSON v. Claude RICE, Sr., Claude Rice, Jr. and Youngblood Truck Lines, Inc.

No. 104.

Supreme Court of North Carolina.

September 29, 1954.

*666 S. J. Pegram and William J. Cocke, Asheville, for plaintiff-appellant.

Adams & Adams, Robert S. Swain, Asheville, for defendants-appellees.

JOHNSON, Justice.

Where jury trial is waived, the findings of fact of the trial court have the force and effect of a verdict by jury and are conclusive on appeal if there be competent evidence to support such findings. Woody v. Barnett, 239 N.C. 420, 79 S.E.2d 789.

The plaintiff's assignments of error challenge the sufficiency of the evidence to support the findings and conclusion that the plaintiff was contributorily negligent.

The General County Court found and concluded in substance that the plaintiff was negligent in that before making the left turn into the side road he did not exercise reasonable care to ascertain that such movement could be made in safety, as required by G.S. § 20-154, and that such negligence was a proximate cause of the plaintiff's injury and damage. The crucial portion of the determinative finding of the court below is that "the plaintiff did not look to his rear and to his left and thus failed to observe, as he should have observed, the oncoming tractor-trailer * * *."

The record discloses plenary evidence in support of the crucial findings which defeat plaintiff's right to recover. It suffices to note that the plaintiff on crossexamination stated that he looked in his mirror when he gave the left-hand signal 350 feet before turning but that he did not look in the mirror again. He further admitted he never saw the tractor-trailer at any time before the collision. As to this, the defendants' evidence discloses that as the tractor-trailer came alongside the plaintiff's pick-up, the plaintiff cut left into the *667 side of the passing vehicle, with the point of impact being behind the tractor and at the front of the trailer.

Prejudicial error has not been made to appear. The judgment below will be sustained under authority of Grimm v. Watson, 233 N.C. 65, 62 S.E.2d 538, and Ervin v. Cannon Mills Co., 233 N.C. 415, 64 S.E.2d 431.

Affirmed.