Whaley v. Adams , 25 N.C. App. 611 ( 1975 )

214 S.E.2d 301 (1975) 25 N.C. App. 611

Doris Q. WHALEY, Administratrix of the Estate of Ressie Whaley, Deceased
v.
Edward R. ADAMS.

No. 758SC163.

Court of Appeals of North Carolina.

May 7, 1975.

Jeffress, Hodges, Morris & Rochelle, P.A., by Thomas H. Morris, Kinston, for plaintiff appellee.

Dees, Dees, Smith, Powell & Jarrett by William W. Smith, Goldsboro, for defendant appellant.

BRITT, Judge.

Defendant contends the court erred in denying his motions for directed verdict and judgment n. o. v. on grounds that plaintiff failed to show actionable negligence on the part of Adams, and plaintiff's own evidence established intestate's contributory negligence as a matter of law.

Assuming, arguendo, that Adams was negligent, we think the evidence clearly establishes contributory negligence on the part of plaintiff's intestate in that he failed to keep a proper lookout and failed to keep his vehicle under proper control.

On the question of contributory negligence, Justice Stacy (later Chief Justice), speaking for the court in Construction Co. v. R. R., 184 N.C. 179, 181, 113 S.E. 672, 673 (1922), said:

The plaintiff's negligence, in order to bar a recovery in an action like the present, need not be the "sole" proximate cause of the injury, for this would exclude the idea of negligence on the part of the defendant, as in any legal sense material or significant. It is sufficient if his negligence is a cause, or one of the causes, without which the injury would not have occurred. If the plaintiff's negligence be the sole and only cause of the injury, it would not be contributory negligence at all, but rather the source of a self-inflicted injury.

In the case at bar plaintiff's evidence tends to show: It was 3:00 a. m. and the weather was fair. Intestate had consumed one beer. The road was on a decline for 800-900 feet and straight. Intestate's lights were burning and he was going 45-50 m. p. h. in his right-hand lane of travel. Defendant's car was dark green, its lights were burning and it was "framed" by the lights of Linwood Martin's car. As intestate approached the wrecked vehicle he did not decrease his speed nor change his direction.

While there is no evidence that intestate actually saw defendant's car prior to impact, ". . . [i]t is the duty of the driver of a motor vehicle not merely to look, but to keep an outlook in the direction of travel; and he is held to the duty of seeing what he ought to have seen". Wall v. Bain, 222 N.C. 375, 379, 23 S.E.2d 330, 333 (1942). The law charges a nocturnal motorist, as it does every other person, with the duty of exercising ordinary care for his own safety. Carrigan v. Dover, 251 N.C. 97, 110 S.E.2d 825 (1959); Chaffin v. Brame, 233 N.C. 377, 64 S.E.2d 276 (1951).

We further note the case of Hines v. Brown, 254 N.C. 447, 119 S.E.2d 182 (1961), in which the Supreme Court held that a motion for involuntary nonsuit was properly granted on the ground that plaintiff's evidence established contributory negligence as a matter of law. We think the showing of contributory negligence was considerably stronger in the instant case than was the showing in Hines.

For the reasons stated, we hold that the trial court erred in denying defendant's motions. The judgment appealed from is

Reversed.

PARKER and VAUGHN, JJ., concur.