Perkins v. Cook ( 1968 )

158 S.E.2d 584 (1968) 272 N.C. 477

Carroll A. PERKINS
v.
Ruth COOK, Joan Cook Clay and Joan Cook Clay, Guardian Ad Litem for Ruth Cook.

No. 356.

Supreme Court of North Carolina.

January 12, 1968.

Byrd, Byrd & Ervin Law Firm, Morganton, for plaintiff appellant.

James C. Smathers, Hickory, for defendant appellees.

LAKE, Justice.

In their brief the defendants concede that the evidence offered by the plaintiff is sufficient to carry the case to the jury on the issue of negligence by Ruth Cook, and that the nonsuit was error unless it can be supported on the ground of contributory negligence by the plaintiff. We are in accord with this conclusion. The defendants do not concede, of course, that the facts with reference to negligence by Ruth Cook are as the plaintiff's evidence indicates, and we do not so suggest, that being a question to be determined by the jury.

A judgment of nonsuit on the ground of contributory negligence is proper only when the plaintiff's evidence establishes his negligence as a proximate cause of the injury so clearly that no other conclusion is reasonably permissible therefrom. Strong, N.C. Index, Negligence, § 26, and cases there cited. It is also well established that upon a motion for judgment of nonsuit the plaintiff's evidence is to be taken in the light most favorable to him, all discrepancies therein are to be resolved in his favor and he must be given the benefit of every inference favorable to him which can be reasonably drawn from his evidence. Strong, N.C. Index, Trial, § 21. So interpreted, the plaintiff's evidence is to the effect that there was a traffic sign upon the island in the intersection requiring Ruth Cook to yield the right of way to the plaintiff. He was entitled to assume that she would do so until a contrary intent by her became apparent, or should have been apparent to him. Carr v. Stewart, 252 N.C. 118, 113 S.E.2d 18; Brady v. Nehi Beverage Co., 242 N.C. 32, 86 S.E.2d 901; State v. Hill, 233 N.C. 61, 62 S.E.2d 532; Strong, N.C. Index 2d, Automobiles, § 19. According to the plaintiff's evidence, so interpreted, he had slowed down for the intersection and was within 50 feet of the point of impact when the automobile driven by Ruth Cook reached the traffic sign. Her speed, prior to that time, was not such as to put him on notice that she could not or did not intend to stop, as required by that sign, in order to yield the right of way to his motor scooter. His testimony was that he then applied his brakes and turned to his right to avoid the collision. This evidence does not compel the conclusion that the plaintiff was guilty of negligence contributing to his own injury. Therefore, the motion for nonsuit against Ruth Cook should have been denied.

G.S. § 20-71.1 (b) provides:

"Proof of the registration of a motor vehicle in the name of any person, firm, or corporation, shall for the purpose of any such action [i. e., action for damages arising out of a collision involving a motor vehicle], be prima facie evidence of ownership and that such motor vehicle was then being operated by and under the control of a person for whose conduct the owner was legally responsible, for the owner's benefit, and within the course and scope of his employment."

The judgment of nonsuit having been improperly entered as to the driver of the automobile, it follows that there was error in nonsuiting the plaintiff's action against Mrs. Joan Cook Clay, the registered owner of the automobile. Ennis v. Dupree, 258 N.C. 141, 145, 128 S.E.2d 231; Hamilton v. McCash, 257 N.C. 611, 619, 127 S.E.2d 214. It is true that the plaintiff's evidence on this point, consisting of the testimony of Mrs. Clay, herself, called as an adverse witness by the plaintiff, is sufficient, if true, to rebut the prima facie evidence that Ruth Cook was driving the automobile as her agent. Mrs. Clay testified, however, that the title to the vehicle was registered in her name. Thus, the plaintiff introduced evidence which the statute makes prima facie proof that Ruth Cook was driving as agent of Mrs. Clay and in the course of her employment. Discrepancies and conflict in the evidence of the plaintiff do not justify a judgment of nonsuit. Therefore, the judgment of the court below was erroneous as to both defendants.

Reversed.