Singletary v. Nixon

80 S.E.2d 676 (1954)

239 N.C. 634

SINGLETARY v. NIXON et al.

No. 100.

Supreme Court of North Carolina.

March 17, 1954.

*678 John M. King and Thorp & Thorp, Rocky Mount, for plaintiff appellant.

E. J. Wellons, Smithfield, and Cooley & May, Nashville, for defendant appellees.

BARNHILL, Chief Justice.

When a motion to dismiss an action as in case of involuntary nonsuit comes on to be heard at the conclusion of all the evidence, as here, the question should be decided upon a consideration of all the evidence. G.S. § 1-183; Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209.

This rule, however, is subject to certain limitations: (a) the evidence is to be taken in the light most favorable to the plaintiff and he is entitled to the benefit of every reasonable inference to be drawn therefrom; (b) so much of the defendant's evidence as is favorable to the plaintiff or tends to explain or make clear that which has been offered by the plaintiff, may be considered; but (c) that which tends to establish another and a different state of facts or which tends to contradict or impeach the evidence offered by plaintiff is to be disregarded. Otherwise consideration would not be in the light most favorable to the plaintiff. Atkins v. White Transportation Co., supra, and cases cited.

Considering the evidence contained in this record, it may be that, non constat these limitations, some of the testimony offered by defendants might well be considered on their motion for judgment of nonsuit entered at the conclusion of all the testimony. The defendants offered evidence tending to show the location and color of the tractor and trailerthe tractor was green and the trailer was red. This was not denied by plaintiff other than in his statement that the vehicle appeared to him to be the same color as the road. They likewise offered evidence tending to show that one of their employees was on the south side of the truck directing traffic and that when plaintiff approached he waved his light at plaintiff until he had to jump out of the road to keep from being run over; and that the truck was not moving at the time of the wreck.

Be that as it may, we need notand do notconsider this testimony for the reason, in part, plaintiff's own description of the unfortunate mishap discloses that he was guilty of contributory negligence as a matter of law. This required a dismissal of the action.

It is established law in this jurisdiction that a judgment of involuntary nonsuit on the grounds of contributory negligence will not be sustained or directed unless the evidence is so clear on that issue that no other conclusion seems to be permissible. Atkins v. White Transportation Co., supra, and cases cited; Samuels v. Bowers, 232 N.C. 149, 59 S.E.2d 787; Levy v. Carolina Aluminum Co., 232 N.C. 158, 59 S.E.2d 632; Goodson v. Williams, 237 N.C. 291, 74 S.E.2d 762; Mikeal v. Pendleton, 237 N.C. 690, 75 S.E.2d 756.

*679 In this connection it may be said that it is presumed reasonable men draw reasonable conclusions, so that the inferences contemplated are logical inferences reasonably sustained by the evidence when considered in the light most favorable to the plaintiff. Atkins v. White Transportation Co., supra.

The hub of our motor vehicle traffic regulations is contained in G.S. § 20-140, 141. Under the provisions of these sections a motorist must at all times operate his vehicle with due regard to the width, traffic, and condition of the highway, and he must decrease speed and keep his car under control "when special hazard exists * * * by reason of weather or highway conditions, and speed shall be decreased as may be necessary to avoid colliding with any * * * vehicle, or other conveyance on * * * the highway * * *" G.S. § 20-141; Brown v. W. B. & S. Bus Lines, 230 N.C. 493, 53 S.E.2d 539; Riggs v. Akers Motor Lines, 233 N.C. 160, 63 S.E.2d 197; Williams v. Henderson, 230 N.C. 707, 55 S.E.2d 462; Matheny v. Central Motor Lines, 233 N.C. 673, 65 S.E.2d 361.

And, specifically, he must (1) when he operates his vehicle during the night time, take notice of the existing darkness which limits visibility to the distance his headlights throw their rays and he must operate his motor vehicle in such manner and at such speed as will enable him to stop within the radius of his headlights (but see ch. 1145, S.L. 1953); (2) keep an outlook in the direction of travel and he is held to the duty of seeing what he should have seen; and (3) give due regard to the then existing weather conditions. Cox v. Lee, 230 N.C. 155, 52 S.E.2d 355; Brown v. W. B. & S. Bus Lines, supra; Adcox v. Austin, 235 N.C. 591, 70 S.E.2d 837; Adams v. Beaty Service Co., 237 N.C. 136, 74 S.E.2d 332.

Here the plaintiff was operating his vehicle on a straight road. His headlights and brakes were in good condition. There was nothing to obstruct his view, and the light of the vehicle he met south of the truck did not obstruct his view. Indeed, it is not disclosed how far he was from the truck at that time. He testified his lights were focused as required by law, and the law provides they must be such as to permit him to see a person a distance of at least two hundred feet ahead. G.S. § 20-131. He did not see the obstruction in the road, which "looked like a cloud" to him, until he was "close" to ithow near in feet he repeatedly declined to estimate. He testified in one way or another more than once that he applied his brakes, veered to the right, and collided with the truck, which "three things" happened "almost at the same time." This testimony compels the conclusion that he was either operating his vehicle at an excessive rate of speed or was not keeping a proper outlook at the time. Of necessity, such conduct on his part was, as a matter of law, a contributing cause of the collision. Presley v. C. M. Allen & Co., 234 N.C. 181, 66 S.E.2d 789.

There is no testimony in the record tending to show that the trailer was suddenly backed across his lane of travel at a time when he was too close to stop and avoid the collision or to support the other plausible explanations advanced by plaintiff. They amount to nothing more than pure speculation.

The plaintiff may, perhaps, draw consolation from the fact this record tends to show that he is the type of man who "sweareth to his own hurt and changeth not." Psalms 15:4. In his examination and cross-examination he was afforded opportunities to modify his testimony to his own advantage. Yet he adhered strictly to his first statements in respect to the manner in which the collision occurred, his nearness to the truck when he first saw it, the time when he applied his brakes, and other circumstances which tended to prove his own want of due care. For this at least he is to be commended.

For the reasons stated the judgment entered in the court below is

Affirmed.

ERWIN and PARKER, JJ., dissent.