Marshall v. Southern Railway Co. ( 1950 )

62 S.E.2d 489 (1950) 233 N.C. 38

MARSHALL
v.
SOUTHERN RY. CO.

No. 673.

Supreme Court of North Carolina.

December 13, 1950.

York, Morgan & York, High Point, for plaintiff appellant.

W. T. Joyner, Raleigh, Roberson, Haworth & Reese, High Point, for defendant appellee.

WINBORNE, Justice.

Passing without deciding the question raised as to whether defendant were negligent as alleged in the complaint, it is manifest from the evidence that plaintiff failed to exercise due care at the time and under the circumstances of his injury, and that such failure contributed to, and was a proximate cause of his injury and damage. The case comes within and is controlled by the principles enunciated and applied in Weston v. Southern R. R. Co., 194 N.C. 210, 139 S.E. 237; Lee v. Atlantic Coast Line R. Co., 212 N.C. 340, 193 S.E. 395; Beck v. Hooks, 218 N.C. 105, 10 S.E.2d 608; Sibbitt v. R. & W. Transit Co., 220 N.C. 702, 18 S.E.2d 203; Dillon v. City of Winston-Salem, 221 N.C. 512, 20 S.E.2d 845; Pike v. Seymour, 222 N.C. 42, 21 S.E.2d 884; Allen v. Dr. Pepper Bottling Co., 223 N.C. 118, 25 S.E.2d 388; Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209; McKinnon v. Howard Motor Lines, 228 N.C. 132, 44 S.E.2d 735; Riggs v. Gulf Oil Co., 228 N.C. 774, 47 S.E.2d 254; Tyson v. Ford, 228 N.C. 778, 47 S.E.2d 251; Cox v. Lee, 230 N.C. 155, 52 S.E.2d 355; Brown v. W. B. & S. Bus Lines, 230 N.C. 493, 53 S.E.2d 539; Hollingsworth v. Grier, 231 N.C. 108, 55 S.E.2d 806. See also Baker v. Atlantic Coast Line R. Co., 205 N.C. 329, 171 S.E. 342; Montgomery v. Blades, 222 N.C. 463, 23 S.E.2d 844.

It is a general rule of law, even in the absence of statutory requirement, that the operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. And in the exercise of such duty it is incumbent upon the operator of a motor vehicle to keep a reasonably careful lookout and to keep same under such control at night as to be able to stop within the range of his lights.

Plaintiff's negligence need not be the sole proximate cause of the injury to bar recovery. It is enough if it contribute to the injury as a proximate cause, or one of them. McKinnon v. Howard Motor Lines, supra, and cases cited.

In the light of these principles, applied to the evidence shown in the record on this appeal, the judgment as of nonsuit entered in the court below is

Affirmed.