Southern Railway Co. v. Dockery , 1 N.C. App. 195 ( 1968 )

Britt, J.

Plaintiff’s two assignments of error relate to the-al-. lowanee of defendant’s motion for judgment’as of involuntary non-suit and the entry of judgment thereon. " :

Certain well-established principles• of law pertinent-to this appeal. are succinctly stated by Parker, C.J., in the recent case of Cutts v. Casey, 271 N.C. 165, 155 S.E. 2d 519, as follows:

“A motion to nonsuit presents the question whether the evidence considered in the light most favorable to plaintiff is sufficient to be submitted to the jury. Walker v. Story, 256 N.C. 453, 124 S.E. 2d 113. Discrepancies and contradictions in plaintiff’s evidence are for the jury, not the court. Clinard v. Trust Co., 264 N.C. 247, 141 S.E. 2d 271. Plaintiff is entitled to every reasonable inference to be drawn from his evidence. Pinyan v. Settle, 263 N.C. 578, 139 S.E. 2d 863.”

In order to establish a case of actionable negligence in this suit, plaintiff must show: First, that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed the plaintiff, under the circumstances in which they were placed; and, second, that such negligent breach of duty was the proximate cause of the injury — a cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed. Mattingly v. R. R., 253 N.C. 746, 117 S.E. 2d 844; Ramsbottom v. R. R., 138 N.C. 38, 50 S.E. 448.

Negligence is the failure to exercise that degree of care for the safety of other persons or their property which a reasonably prudent man, under like circumstances, would exercise, and may consist either of acts of commission or omission. 3 Strong, N. C. Index, Negligence, § 1, p. 442, and cases therein cited.

It is also a general rule of law in North Carolina 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 same under control, and to keep a reasonably careful lookout. Mattingly v. R. R., supra; Smith v. Rawlins, 253 N.C. 67, 116 S.E. 2d 184, 185; Clontz v. Krimminger, 253 N.C. 252, 116 S.E. 2d 804.

The evidence presented by plaintiff in this action when viewed in the light most favorable to plaintiff is sufficient to justify, though not necessarily to impel, the inference of negligence on the part of the defendant. Hence, an issue arises for the determination of the jnrj. Peeden v. Tait, 254 N.C. 489, 119 S.E. 2d 450.

.The testimony would support the inference that the defendant, in crossing plaintiff’s tracks, did not keep his automobile- under proper control or did not keep a proper lookout. Although defendant contends that he was blinded by a car which he was meeting, a question of fact to be decided by the jury arises. Williams v. Express Lines, 198 N.C. 193, 151 S.E. 197.

In his brief, defendant does not argue contributory negligence as a matter of law on the part of plaintiff. We hold that plaintiff’s evidence does not disclose contributory negligence as a matter of law.

The trial court erred in granting defendant’s motion for judgment as of involuntary nonsuit, necessitating a

New trial.

Campbell and MoRRis, JJ., concur.