Mayberry v. Allred

140 S.E.2d 406 (1965)

263 N.C. 780

Dewey Keith MAYBERRY, Plaintiff, v. Alice Thompson ALLRED, Defendant.

No. 767.

Supreme Court of North Carolina.

February 24, 1965.

*407 Daniel J. Park, Elkin, for plaintiff.

Hudson, Ferrell, Petree, Stockton, Stockton & Robinson by W. F. Maready and J. Robert Elster, Winston-Salem, for defendant.

SHARP, Justice.

Plaintiff's evidence, taken in the light most favorable to him, is sufficient to establish these facts: After having ascertained that no vehicle was approaching from the north within the limits of his visibility of 150 feet, with his signal light blinking, plaintiff attempted to make a left turn from the center lane of a 41-foot wide street into an intersecting 25-foot wide street in a 35 MPH speed zone. When all but 4 feet of his automobile had cleared the intersection, it was struck on the right rear by defendant's automobile, which stopped at the point of impact.

If the jury should find these to be the facts, plaintiff was already in the intersection, giving the statutory left-turn signal, at a time when defendant was 150 feet *408 away. If so, it was defendant's duty to have delayed her entrance into the intersection until plaintiff had cleared it entirely. G.S. § 20-155(b).

The physical evidence belies plaintiff's estimate that defendant approached the intersection at a speed of 50 MPH, and makes it without probative value. Burgess v. Mattox, 260 N.C. 305, 132 S.E.2d 577; Jones v. Schaffer, 252 N.C. 368, 114 S.E.2d 105; Hudson v. Petroleum Transit Co., 250 N.C. 435, 108 S.E.2d 900. The Pontiac stopped at the point of impact with no skid marks behind it. Although its weight was approximately twice that of the Karmann Ghia, which it hit broadside, it merely turned the lighter car round and knocked it 4-5 feet. These are physical facts which speak louder than plaintiff's testimony. Carr v. Lee, 249 N.C. 712, 716, 107 S.E.2d 544, 547, and show that defendant's speed was less than 50 MPH. These same facts, however, give rise, also, to the inference that plaintiff, by the exercise of a proper lookout, could have avoided colliding with any part of the Karmann Ghia, only 4 feet of which remained in the intersection at the time of the impact. "Fractions of a second and a few feet of space may determine the difference between safety and danger in crossing intersecting streets and highways." Higgins, J., in Wright v. Pegram, 244 N.C. 45, 47, 92 S.E.2d 416, 418.

The testimony of the motorist who was traveling in the lane to plaintiff's right tends to show that plaintiff turned left in the intersection in front of defendant's approaching automobile at a time when it was unsafe to turn. G.S. § 20-154; Wiggins v. Ponder, 259 N.C. 277, 130 S.E.2d 402. A portion of plaintiff's own testimony is susceptible to the inference that when he saw defendant approaching, he applied his brakes and attempted to stop in her lane of travel, instead of accelerating in a maximum effort to clear the intersection. Discrepancies and contradictions, even in plaintiff's testimony, are for the jury, not the court. A motion for nonsuit on the ground of contributory negligence may be sustained only when the evidence, taken in the light most favorable to plaintiff, establishes it so clearly that no other reasonable inference is possible. Fowler v. Atlantic Co., 234 N.C. 542, 67 S.E.2d 496. Issues of defendant's negligence and plaintiff's contributory negligence alike arise upon this evidence. Lemons v. Vaughn, 255 N.C. 186, 120 S.E.2d 527. The case, therefore, should have been submitted to the jury.

Reversed.