Rouse v. Snead

157 S.E.2d 124 (1967)

271 N.C. 565

Fred Thomas ROUSE, Jr., Minor, by his Next Friend, Fred Thomas Rouse, Sr., and Fred Thomas Rouse, Sr. v. Fred Hamilton SNEAD, Jr.

No. 201.

Supreme Court of North Carolina.

October 11, 1967.

*126 Marshall & Williams, by Lonnie B. Williams, Wilmington, for defendant appellant.

Aaron Goldberg, James L. Nelson, Wilmington, for plaintiff appellees.

HIGGINS, Justice.

The defendant has assigned errors based on numerous exceptions to the admission and exclusion of evidence. Examination of each exception fails to reveal error of substance. The evidence was conflicting as to the defendant's speed, as to whether the lights on the plaintiff's vehicle were visible to approaching traffic, and as to the position of the disabled vehicle at the time of collision. The evidence was sufficient to permit the jury to find the Oldsmobile was well lighted, notwithstanding the motor was dead. The evidence of defendant's speed, the skidmarks, and failure to avoid striking the plaintiff's vehicle was sufficient to go to the jury on the issue of defendant's negligence.

We have examined the many objections to the Court's charge and find them without merit. When considered as a whole, as it must be, the charge presented the case fairly and gave the jurors an accurate legal blueprint by which they were to be governed.

Notwithstanding plaintiff's contention to the contrary, the defendant's motion for nonsuit presented the question whether plaintiff's evidence disclosed his contributory negligence as a matter of law. On motion to nonsuit, where negligence and contributory negligence arise on the pleadings, as here, the Court considers first whether the evidence is sufficient for jury consideration on the issue of defendant's negligence. If found insufficient, the Court will grant the motion. However, if the evidence is sufficient for jury determination, then the Court will determine whether plaintiff's contributory negligence appears from his evidence as a matter of law. If there is some evidence of contributory negligence, but not enough to disclose contributory negligence as a matter of law, then the case should go to the jury on all issues upon which there is sufficient evidence to raise a jury question. Plaintiff's contributory negligence as a matter of law requires nonsuit, notwithstanding evidence on other issues. Rosser v. Smith, 260 N.C. 647, 133 S.E.2d 499; Holland v. Malpass, 255 N.C. 395, 121 S.E.2d 576; Peeden v. Tait, 254 N.C. 489, 119 S.E.2d 450.

After careful review, we think the evidence of the contributory negligence places this case in the borderline category. There was evidence which would support a finding the plaintiff, driver, in pushing the vehicle back on the road, was negligent. The hour was late at night. No traffic was in sight. The road was straight for several hundred yards. Only the left wheels of the vehicle were on the hard surface, to the extent of about 2 feet. The evidence, however, does not compel a finding the plaintiff was negligent. On the issue of contributory negligence, reasonable minds may differ. Such being so, that issue was for the jury. Short v. Chapman, 261 N.C. 674, 136 S.E.2d 40; Rodgers v. Thompson, 256 N.C. 265, 123 S.E.2d 785. Judge Parker was correct in overruling motions for nonsuit.

In the judgment of the Superior Court, we find

No error.