Naylor v. Naylor , 11 N.C. App. 384 ( 1971 )

181 S.E.2d 222 (1971) 11 N.C. App. 384

Annie L. NAYLOR
v.
Lestus Lee NAYLOR.

No. 714SC225.

Court of Appeals of North Carolina.

May 26, 1971.

Bryan, Jones, Johnson, Hunter & Greene and Stewart & Hayes by Gerald Hayes, D. K. Stewart, Dunn, for plaintiff appellant.

Chambliss, Paderick & Warrick by Joseph B. Chambliss, Clinton, for defendant appellee.

BRITT, Judge.

Plaintiff's sole assignment of error is that the trial court erred in directing a verdict for defendant at the close of plaintiff's evidence; she contends that her evidence did not show her to be contributorily negligent as a matter of law. We agree with this contention.

On appeal from the granting of a motion for directed verdict under Rule 50(a) of the Rules of Civil Procedure, we must determine the sufficiency of plaintiff's evidence guided by the same principles applicable in determining the sufficiency of evidence to withstand the former motion for nonsuit under G.S. § 1-183. Anderson v. Mann, 9 N.C.App. 397, 176 S.E.2d 365 (1970). In Dinkins v. Carlton, 255 N.C. 137, 120 S.E.2d 543 (1961) in the third headnote to the opinion, we find the following:

Whether a passenger is guilty of contributory negligence in voluntarily embarking on a trip with a driver whom he knows to be reckless, or in failing to abandon the trip after discovery that the driver was operating the vehicle in a reckless manner or while intoxicated, or in failing to remonstrate with the driver, is usually a question for the jury under the rule of the ordinary prudent man, and the conduct of the passenger in these respects will not ordinarily be held for contributory negligence as a matter of law.

In considering a motion for a directed verdict in favor of defendant, the evidence must be viewed in the light most favorable to plaintiff and a directed verdict is proper only when contributory negligence is so clearly established that no other conclusion can reasonably be reached. Beam v. Parham, 263 N.C. 417, 139 S.E.2d 712 (1965); Bell v. Maxwell, 246 N.C. 257, 98 S.E.2d 33 (1957); Jackson v. Jackson, supra. Discrepancies and contradictions in the evidence are to be resolved by the jury and not by the court. Dinkins v. Carlton, supra; Jackson v. Jackson, 4 N.C.App. 153, 166 S.E.2d 541 (1969).

When the testimony given at trial in the instant case is viewed in the light most favorable to plaintiff one must conclude that plaintiff had not seen defendant drinking, did not smell alcohol on defendant, and by observing defendant's actions did not recognize that he was intoxicated; therefore, it was error for the court to hold that plaintiff in riding with defendant was contributorily negligent as a matter of law.

The judgment appealed from is

Reversed.

CAMPBELL and GRAHAM, JJ., concur.