Elder v. Plaza Railway , 194 N.C. 617 ( 1927 )

Staot, O. J.,

after stating the case: The defendant’s negligence may be conceded, or that there is evidence tending to establish it, but it is stressfully contended that the plaintiff’s own testimony shows such contributory negligence on her part as to bar a recovery.

Plaintiff does not say bow long sbe was on tbe track before tbe collision, but a fair inference from ber testimony is that it occurred almost immediately after sbe ran from behind tbe Chrysler automobile. Tbe uncontroverted testimony of all tbe witnesses is to tbe effect that when tbe plaintiff ran upon tbe track tbe moving street car was not less than 12 nor more than 20 feet away. Assuming that tbe motorman and tbe plaintiff, running in opposite directions, or towards each other, were both moving at a rate of about 15 or 20 miles an hour, which is considerably less than some of tbe witnesses put tbe plaintiff’s speed, this would leave but a short interval of time for tbe motorman to stop. In fact, too short for practical purposes. Tbe plaintiff, according to ber evidence, made no effort to stop, as sbe did not see or bear tbe street car. Sbe testified that sbe was blinded by tbe bright lights of an automobile approaching from tbe opposite direction. Under this evidence, we think tbe proximate cause of tbe injury must be referred to tbe plaintiff’s own negligence. Tbe absence of a fender on tbe front of tbe street car, as testified to by some of tbe witnesses, could not have been tbe sole cause of tbe injury. No fender, practical or other, would have prevented tbe collision. And it is sufficient to bar a recovery, in an action like tbe present, if tbe plaintiff’s negligence is one of tbe proximate causes of tbe injury. It need not be tbe sole proximate cause. Construction Co. v. R. R., 184 N. C., 179, 113 S. E., 672.

Contributory negligence, such as will defeat a recovery in a case like tbe one at bar, is tbe negligent act of tbe plaintiff, which, concurring and cooperating with tbe negligent act of tbe defendant thereby becomes tbe real, efficient and proximate cause of tbe injury, or tbe cause without which tbe injury would not have occurred. Moore v. Iron Works, 183 N. C., 438, 111 S. E., 776.

Speaking to this subject in Fulcher v. Lumber Co., 191 N. C., 408, 132 S. E., 9, Connor, J., delivering tbe opinion of tbe Court, said: “Contributory negligence on tbe part of plaintiff, except where otherwise provided by statute, is held to bar recovery of damages resulting from tbe negligence of defendant if such contributory negligence concurs with tbe negligence of defendant, as a proximate cause of tbe injury. It implies ex vi termini that tbe negligence of defendant is a cause of tbe injury.”

Originally, under C. S., 567, in cases calling for its application, there was some question as to whether a plea of contributory negligence (tbe burden of such issue being on tbe defendant) could be taken advantage of on a motion to nonsuit, but it is now well settled that such may be done when tbe contributory negligence of tbe plaintiff is established by bis or ber own evidence, as be or sbe thus proves himself or herself out of court. Holton v. R. R., 188 N. C., 277, 124 S. E., 307; Davis v. R. R., 187 N. C., 147, 120 S. E., 827; Wright v. R. R., 155 N. C., 325, 71 S. E., 306; Horne v. R. R., 170 N. C., 645, 87 S. E., 523.

In our opinion, according to jdaintiff’s own showing, the collision was clearly due to her own negligence, and in such case, on motion, duly made in apt time, judgment as of nonsuit should have been entered. Davis v. R. R., 187 N. C., 147, 120 S. E., 827; S. v. Fulcher, 184 N. C., 663, 113 S. E., 769.

Reversed.