Blanton v. Frye , 272 N.C. 231 ( 1967 )

158 S.E.2d 57 (1967) 272 N.C. 231

Willie A. BLANTON
v.
Doris Munday FRYE.

No. 359.

Supreme Court of North Carolina.

December 13, 1967.

Byrd, Byrd & Ervin, John W. Ervin, Jr., Morganton, for plaintiff appellant.

Patton & Starnes, by Thomas M. Starnes, Morganton, for defendant appellee.

HIGGINS, Justice.

The pleadings present issues of defendant's negligence and plaintiff's contributory negligence. At the close of all the evidence, the Court, without assigning any reason, entered judgment of compulsory nonsuit. Either insufficient evidence of defendant's negligence or evidence of plaintiff's contributory negligence as a matter of law would sustain the judgment.

The parties admitted the accident occurred at night. At the time the plaintiff approached the scene of the accident, the defendant's Oldsmobile was at an angle across the south lane of U. S. Highway 70. The rear end was about 3 feet from the south shoulder. The front was 1 or 2 feet across the center line. The plaintiff was blinded by the lights of vehicles meeting him and failed to see the defendant's disabled automobile until he was "within 50 feet" or as he told the officer "until he was right on it".

All the evidence disclosed the defendant had left the home of her mother-in-law and attempted to enter U. S. Highway 70 from the south, intending to cross the south lane and travel west. However, as she entered the highway, the motor suddenly cut off. Her attempts to start the motor failed. The gears were released and the vehicle would not coast in either direction. The plaintiff cut sharply to his right, missed the defendant's vehicle, but struck a bank and sustained injuries.

All the evidence disclosed the defendant's efforts to start the engine failed. She released the gears but the force of gravity was not sufficient to move the vehicle. The defendant could not avoid stopping (stalling) on the highway. Her conduct was not in violation of the law against parking or obstructing the highway. Saunders v. Warren, 264 N.C. 200, 141 S.E.2d 308; Melton v. Crotts, 257 N.C. 121, 125 S.E.2d 396; Meece v. Dickson, 252 N.C. 300, 113 S.E.2d 578.

In the emergency which had suddenly arisen, without fault on her part, it was the defendant's duty to give passing motorists such notice of the danger her vehicle created as the occasion permitted. She continued her efforts to start the engine and, according to her evidence, kept her lights on. The plaintiff alleged she had parked without lights. He testified he saw the automobile blocking his traffic lane. "I did not see any lights. * * * I cut to the right to avoid hitting her in the side". Not once did the plaintiff say the lights were not on, or that he could have seen lights had they been on. Obviously, the side view did not readily expose either the front or the rear lights. His statement that he did not see lights is without probative force. The physical evidence, in the light of the plaintiff's testimony, indicate he was not in a position to see lights on the defendant's vehicle. His testimony goes no further than to say "I did not see any lights". Had he gone further and testified he was in a position to see lights and did not see them, a different question probably would have confronted Judge Latham. The plaintiff did not see the vehicle until he was right on it, according to his own statement. His attention thereafter was devoted to his efforts (happily successful) to avoid "striking her in the side".

Motion to nonsuit does not permit the Court to weigh the evidence; that is the exclusive province of the jury. Wall v. Bain, 222 N.C. 375, 23 S.E.2d 330. However, when nonsuit is denied at the close of the plaintiff's evidence (as in this case) the defendant's evidence, which is not in conflict with the plaintiff's, is taken into account. Eason v. Grimsley, 255 N.C. 494, 121 S.E.2d 885. The defendant, and one of her witnesses, gave positive testimony that lights on the Oldsmobile were on. The mere statement that plaintiff did not see a light is not enough if he omits to go further and say he was keeping a lookout and was in a position to see lights. Hollingsworth v. Grier, 231 N.C. 108, 55 S.E.2d 806; Parkway Bus Co. v. Coble Dairy Products Co., 229 N.C. 352, 49 S.E.2d 623.

The plaintiff's evidence raises serious doubt whether the presence or absence of lights on the Oldsmobile could have influenced the plaintiff's evasive action. He could see neither his traffic lane nor the stalled automobile until the lights facing him had passed. According to the evidence, when he applied brakes, his vehicle missed the Oldsmobile, spun around twice, and landed against the bank of the road. Whether the absence or presence of lights could have been a proximate cause of the accident is problematical. Morris v. Jenrette Transp. Co., 235 N.C. 568, 70 S.E.2d 845. Suffice it to say that all the positive evidence discloses the disabled vehicle's lights were on. Evidence of negligence on the part of the defendant is not disclosed. Nonsuit was proper. Judgment of the Superior Court is

Affirmed.