Lake v. HARRIS EXPRESS, INCORPORATED

106 S.E.2d 518 (1959)

249 N.C. 410

Billy Gene LAKE v. HARRIS EXPRESS, INCORPORATED, Original Defendant; and Evelyn R. Freeman, Administratrix of the Estate of Daniel Vance Freeman, Additional Defendant.

No. 528.

Supreme Court of North Carolina.

January 14, 1959.

James L. Woodson, Walter H. Woodson, Salisbury, for plaintiff, appellant.

Helms, Mulliss, McMillan & Johnston, by: Fred B. Helms, Charlotte, W. T. Shuford, Salisbury, for defendant Harris Express, Inc., appellee.

HIGGINS, Justice.

The question presented is whether the evidence was sufficient to entitle the plaintiff to have the jury pass on it. "If the evidence in the light most favorable to the plaintiff, giving him the benefit of all permissible inferences from it, tends to support all essential elements of actionable negligence, then it is sufficient to survive the motion to nonsuit." McFalls v. Smith, 249 N.C. 123, 105 S.E.2d 297; Taylor v. Brake, 245 N.C. 553, 96 S.E.2d 686; Scarborough v. Calypso Veneer Co., 244 N.C. 1, 92 S.E.2d 435, 57 A.L.R.2d 818.

Inconsistencies and conflicts in the evidence, whether witnesses are mistaken or otherwise, truthful or otherwise, are questions of fact to be resolved by the fact finding bodythe jury. Only a question of law is presented by demurrer to the evidence or motion to nonsuit. Bell v. Maxwell, 246 N.C. 257, 98 S.E.2d 33; Keener v. Beal, 246 N.C. 247, 98 S.E.2d 19; Mallette v. Ideal Laundry and Dry Cleaners, 245 N.C. 652, 97 S.E.2d 245.

The plaintiff alleged the defendant, with its own travel lane unobstructed, (1) carelessly turned to his left across another southbound traffic lane, crossed the yellow lines into the path of traffic going into the opposite direction, and collided with the car in which the plaintiff was a guest passenger; that the movement could not be made in safety; (2) the defendant failed to yield one-half the travel portion of the highway; (3) he failed to keep his vehicle under proper control and to operate it carefully under the conditions then existing, thus causing the accident and the plaintiff's injury. His evidence was sufficient to entitle him to have the jury consider and pass on it. The allegations and the evidence present issues of fact. The court committed error in withdrawing the case from the jury.

Reversed.