Stewart v. Gallimore

144 S.E.2d 862 (1965)

265 N.C. 696

Edward Pernay STEWART, Plaintiff, v. Victor Tyson GALLIMORE, Original Defendant, and Michael Kayler, Additional Defendant.

No. 534.

Supreme Court of North Carolina.

November 24, 1965.

*864 Richard L. Brown, Jr., S. Craig Hopkins, Albemarle, for original defendant appellant.

D. D. Smith, Albemarle, for plaintiff appellee.

*865 PER CURIAM.

Upon a motion for judgment as of nonsuit the evidence must be considered in the light most favorable to the plaintiff, all reasonable inferences in his favor must be drawn therefrom and all conflicts must be resolved in his favor. Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E.2d 338; Ammons v. Britt, 256 N.C. 248, 123 S.E.2d 579; Jenkins v. Leftwich Electrical Co., 254 N.C. 553, 119 S.E.2d 767. A nonsuit on the ground of plaintiff's contributory negligence can be granted only when his own evidence shows such negligence by him so clearly that no other reasonable inference can be drawn therefrom. McNamara v. Outlaw, 262 N.C. 612, 138 S.E.2d 287.

So interpreted, the evidence is sufficient to permit a finding that the defendant approached the intersection without keeping a proper lookout, that he gave no signal of his intent to turn to his left, that he did not proceed to the center of the intersection before commencing his left turn and that he drove upon the left of the center of Highway 49 as he approached the intersection. Thus, the evidence is sufficient to permit the jury to find in favor of the plaintiff upon the first issue. G.S. §§ 20-146, 20-153, 20-154. While the distance traveled after the impact may tend to show that Kayler was driving at an excessive speed, other evidence offered by the plaintiff is to the contrary. No other evidence offered by the plaintiff tends to show negligence by Kayler. Consequently, a judgment of nonsuit on this ground could not properly have been entered.

In his charge, the judge instructed the jury as to contributory negligence and as to proximate cause. No exception was taken to these portions of the charge. Then, after recounting the alleged acts and omissions of Kayler, which defendant contends constituted contributory negligence, he added the sentence including the phrase "one of the immediate causes" to which the defendant excepts. Technically, it was error to use the phrase "one of the immediate causes" rather than "one of the proximate causes" in this instruction. A proximate cause may be an act or omission which does not immediately precede the injury or damage. Harvell v. Weldon Lumber Co., 154 N.C. 254, 70 S.E. 389. However, each act or omission by the plaintiff's driver shown by the defendant's evidence, assuming it to be true, continued up to the moment of the collision. Such acts or omissions, if they occurred, and if they were proximate causes of the collision were also immediate causes of it. When considered in the light of these circumstances, and in connection with other portions of the charge with reference to negligence and causation, the use of the term "one of the immediate causes" was harmless error and not prejudicial to the defendant. Such error is not a sufficient basis for granting a new trial. Burgess v. C. G. Tate Construction Co., 264 N.C. 82, 140 S.E.2d 766.

No Error.