Lassiter v. Williams , 272 N.C. 473 ( 1968 )

158 S.E.2d 593 (1968) 272 N.C. 473

Mrs. Linda LASSITER, Administrator of the Estate of Robert Thurman Lassiter, Deceased
v.
Floyd Jackson WILLIAMS, Jr.

No. 847.

Supreme Court of North Carolina.

January 12, 1968.

Maupin, Taylor & Ellis by Frank W. Bullock, Jr., Raleigh, for defendant appellant.

Cooper & Winston by Robert E. Cooper, Carrboro, for plaintiff appellee.

PARKER, Chief Justice.

The sole assignment of error is to the failure of the court below to allow defendant's motion for judgment of nonsuit. Thus, the first question is whether there was sufficient evidence of negligence on the part of the defendant to go to the jury. The pleadings establish the fact that defendant was driving his automobile north toward Chapel Hill at the time and place alleged.

Plaintiff alleged that defendant was negligent, inter alia, in driving on the wrong side of the highway. G.S. § 20-146 and G.S. § 20-148, insofar as they apply to the facts of this case, require motor vehicle operators to drive upon the right half of the highway and to give to drivers of vehicles proceeding in the opposite direction one-half of the main-traveled portion of the highway. "A violation of either of these statutes is negligence per se, and, when the proximate cause of injury, constitutes actionable negligence." Anderson v. Webb, 267 N.C. 745, 148 S.E.2d 846. See McGinnis v. Robinson, 258 N.C. 264, 128 S.E.2d 608; Bondurant v. Mastin, 252 N.C. 190, 113 S.E.2d 292; Wallace v. Longest, 226 N.C. 161, 37 S.E.2d 112.

"When a plaintiff suing to recover damages for injuries sustained in a collision offers evidence tending to show that the collision occurred when the defendant was driving to his left of the center of the highway, such evidence makes out a prima facie case of actionable negligence." Anderson v. Webb, supra.

Evidence that defendant was driving to his left of the center of the highway when this collision occurred is circumstantial, i. e., based on testimony as to the physical facts at the scene. Such evidence may be sufficiently strong to infer negligence and take the case to the jury. Barefoot v. Joyner, 270 N.C. 388, 154 S.E.2d 543; Anderson v. Webb, supra; Peoples Bank & Trust Co. v. Snowden, 267 N.C. 749, 148 S.E.2d 833; Yates v. Chappell, 263 N.C. 461, 139 S.E.2d 728; Randall v. Rogers, 262 N.C. 544, 138 S.E.2d 248; Lane v. Dorney, 252 N.C. 90, 113 S.E.2d 33; Etheridge v. Etheridge, 222 N.C. 616, 24 S.E.2d 477.

The evidence must be considered in the light most favorable to plaintiff in passing upon a motion to nonsuit. 4 Strong, N.C. Index, Trial, § 21; Thames v. Nello L. Teer Co., 267 N.C. 565, 148 S.E.2d 527. When so considered, the evidence here, i. e., the location of the vehicles locked together on the highway, the impact area on the vehicles, the debris on the highway under them, the absence of any tire or skid or other marks either in or outside the debris, is sufficient to support the inference that the collision occurred substantially where the vehicles were found and therefore that defendant was driving approximately in the center of deceased's lane of travel when the collision occurred. Therefore, the evidence was sufficient to go to the jury. Anderson v. Webb, supra.

There remains the question of whether nonsuit should have been allowed on the basis of contributory negligence of deceased. The evidence indicates that plaintiff's intestate's vehicle was partially across the center line when the vehicles came to rest locked together at the front with the Chevrolet being more damaged on the right front than the left front. Although this would support an inference of negligence in driving on the wrong side of the highway, there are other equally valid inferences consistent with absence of negligence on the part of the deceased. The force of the impact which was primarily on the right front of deceased's vehicle could have knocked his vehicle across the center line. Deceased may have been taking evasive action such as a person of ordinary prudence would have taken under similar circumstances to avoid a collision, as the law requires a driver to do. Forgy v. Schwartz, 262 N.C. 185, 136 S.E.2d 668; Henderson v. Henderson, 239 N.C. 487, 80 S.E.2d 383.

"Nonsuit on the ground of contributory negligence should be allowed only when the plaintiff's evidence, taken in the light most favorable to him, so clearly establishes this defense that no other reasonable inference or conclusion can be drawn therefrom." Barefoot v. Joyner, supra; Thames v. Nello L. Teer Co., supra. The court ruled correctly in denying defendant's motion for judgment as of nonsuit. The judgment below is

Affirmed.