Cartrette v. Canady , 259 N.C. 714 ( 1963 )

Denny, C. J.

The appellants assign as error the failure of the court below to sustain their motion for judgment as of nonsuit made at the close of plaintiff’s evidence and renewed at the close of all the evidence.

A careful review of all the evidence disclosed by the record leads us to the conclusion that it was sufficient to carry the case to the jury against the appellants. This assignment of error is overruled.

The appellants also assign as error the ruling of the court below in allowing the additional defendant’s motion for judgment as of non-suit at the close of the original defendants’ evidence.

The appellants argue and contend that the evidence of the plaintiff is to be considered in the light most favorable to the original defendants and that such evidence indicated that the automobile operated by Mrs. Canady, one of the original defendants, was in a skid when it was first observed by the plaintiff. It is further contended that this evidence, when considered together with Mrs. Canady’s evidence, corroborates her evidence as why her automobile skidded down the road at the time of the impact and thus created an inference of concurrent negligence as between her and additional defendant sufficiently to entitle the original defendants to have their action for contribution against the additional defendant submitted to the jury.

In the first place, the plaintiff alleged no cause of action, against the defendant Johnson and sought no recovery against him. Therefore, the burden was upon the original defendants, on their cross action, to establish by the greater weight of the evidence that the additional defendant was negligent and that such negligence concurred with their own negligence, if any, which joint and concurrent negligence was a proximate cause of the injuries and damages sustained by the plaintiff. Pascal v. Transit Co., 229 N.C. 435, 50 S.E. 2d 534; Potter v. Frosty Morn Meats, Inc., 242 N.C. 67, 86 S.E. 2d 780. This is the reason why an additional defendant should not move for a judgment as of nonsuit in such an action as this until the original defendant or defendants, who had him made an additional party defendant, have presented their evidence against the additional defendant on the cross action for contribution. Norris v. Johnson, 246 N.C. 179, 97 S.E. 2d 773.

The original defendants seek to rely upon testimony which was not offered by them and which was directly contradictory to Mrs. Canady’s own testimony. The original defendants did allege in their answer, that “Mrs. Elsie Jean Canady pulled her automobile off the road on the right shoulder in order to avert a head-on collision, and the shoulder of said road being rough and uneven caused the automobile of defendants to go into a skid and the said automobile came back on the road resulting in a collision between plaintiff’s and defendant’s automobiles.” In her testimony, however, she categorically and unequivocally denied that her car ever skidded or that she ever completely lost control of her oar.

, We think the evidence of the additional defendant failed to show a causal connection between the negligence of Johnson and the negligence of the defendant Mrs. Canady which was the proximate cause of plaintiff’s injuries. When the driver of the Canady car, who testified that she had it under control, pulled back on the highway and across the center line of the highway and never looked to ascertain the approach of the Cartrette car, the negligence of Johnson had spent itself, and the court below did not commit error in sustaining the additional defendant’s motion for judgment as of nonsuit.

When Mrs. Canady became aware of the existence of the potential danger created by the negligence of Johnson, and thereafter by an independent act of negligence brought about an accident, the first tort feasor (Johnson) was relieved of liability because the condition created by him was merely a circumstance of the accident and not its proximate cause. Caulder v. Gresham, 224 N.C. 402, 30 S.E. 2d 312. See also Potter v. Frosty Morn Meats, Inc., supra; Smith v. Grubb, 238 N.C. 665, 78 S.E. 2d 598; Beach v. Patton, 208 N.C. 134, 179 S.E. 446; and Beatty v. Dunn, 103 Vt. 340, 154 A. 770.

The facts in the instant case are not controlled by our decisions in Bondurant v. Mastin, 252 N.C. 190, 113 S.E. 2d 292; Cotton Co. v. Ford, 239 N.C. 292, 79 S.E. 2d 389, and similar cases

The judgment of the court below is

Affirmed.