Maddox v. Brown

59 S.E.2d 791 (1950) 232 N.C. 244

MADDOX
v.
BROWN et al.

No. 523.

Supreme Court of North Carolina.

June 9, 1950.

Smathers & Carpenter, Charlotte, for plaintiff, appellee.

Robinson & Jones, Charlotte, for defendants, appellants.

SEAWELL, Justice.

Our view of the record in this case leads us to the conclusion that decision must hinge on the demurrer to plaintiff's evidence and motion to nonsuit. There are numerous exceptions to the admission of evidence; and the charge to the jury is almost completely bracketed with exceptions. We have examined the record closely in these respects and do not find in these exceptions any reason to disturb the verdict.

Our discussion of the legal sufficiency of the evidence to be submitted to the jury, both on the question of defendant's negligence and that of the plaintiff's contributory negligence, must fall within familiar lines.

1. The plaintiff is not required to present a perfect case or evidence free from contradictions in its support in order to recover. Barlow v. City Bus Lines, 229 N.C. 382, 49 S.E.2d 793, 794. In this case Chief Justice Stacy, writing the opinion of the Court, said: "Discrepencies and contradictions, even in plaintiff's evidence, are for the twelve and not for the court" citing Emery v. Lititz Mut. Ins. Co., 228 N.C. 532, 46 S.E.2d 309; Industrial Bank of Elizabeth City v. Resolute Fire Ins. Co., 223 N.C. 390, 26 S.E.2d 862; Shell v. Roseman, 155 N.C. 90, 71 S.E. 86; numerous authorities to the same effect may be found in the annotation to G.S. § 1-183, at page 233. See also, Potter v. National Supply Co., 230 N.C. 1, 51 S.E.2d 908.

If upon the whole evidence there are inferences tending to support plaintiff's case, that is evidence pointing to the proximate negligence of the defendant, motion for nonsuit cannot be allowed,—the case is for the jury, who alone may judge of its weight; Potter v. National Supply Co., 230 N.C. 1, 51 S.E.2d 908; Thomas v. Thurston Motor Lines, 230 N.C. 122, 52 S.E.2d 377, and cases cited; Gladden v. Setzer, 230 N.C. 269, 52 S.E.2d 804, and cases cited; and dispose of its contradictions and repugnances.

It is familiar law that on demurrer to the evidence and motion to nonsuit, the evidence must be taken in the light most favorable to the plaintiff. Wingler v. Miller, 223 N.C. 15, 25 S.E.2d 160; Ross v. Atlantic Greyhound Corp., 223 N.C. 239, 25 S.E.2d 852; Lindsey v. Speight, 224 N.C. 453, 31 S.E.2d 371; Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Buckner v. Wheeldon, 225 N.C. 62, 33 S.E.2d 480. See cumulative citations under G.S. § 1-183.

The evidence cannot be said to be without reasonable inferences in support of the contention of the plaintiff that the defendant Brown was negligent, and that his negligence was the proximate cause of the injury and death of the intestate. Legitimate inferences from the evidence as a whole may be drawn tending to show that the defendant, after passing the milk truck, continued in the passing lane without returning to his own right-hand lane of traffic, which he might easily have done; that he persisted in following plaintiff's intestate, rider of the motorcycle, and blowing at him either continuously or continually, for approximately 500 feet before overtaking him at the point of collision; and that during said time he was constantly endeavoring to force Maddox out of his path by repeated warnings in order to pass him on the left, when his right lane of traffic was free from obstruction; that during this time, still travelling at the rate of 35 or 40 miles per hour, he brought his bus into a zone near the intersection of a paved highway in which there was an additional danger which duty required an ordinarily prudent man to observe; that very near this intersection he came in contact with the rider of the motorcycle who lost his life by impact with the bus. Physical markings upon the two vehicles support the view that when this occurred the motorcycle rider was still in advance of the bus and received the impact first to the rear of the motorcycle on the curving front of the bus; and the testimony of Mrs. Leggette, a passenger in the bus who looked through the windshield and saw Maddox in advance of the bus and testified he turned his face toward the bus and looked immediately before the collision, goes to the same effect.

The body of Maddox appears from the evidence to have been found very near the center line of the highway. The conclusion may be drawn from this evidence that the defendant did not observe due care in an attempt to pass the rider of the motorcycle to his left; and that the injury and death of Maddox might have been avoided if he had observed that degree of care necessary in negotiating the intersection or that the tragedy might have been avoided if he had decreased his speed and passed him on the right.

2. There is no difference between the negligence of a plaintiff and the negligence of a defendant insofar as the rule of measurement is concerned; both are required to exercise the care which an ordinarily prudent man would observe under the circumstances. But in either event the bare existence of negligence signifies nothing unless it is proximately concerned in producing injury and death.

The earliest case in our Reports recognizing the power of the trial judge to take a case from the jury because of the contributory negligence of the plaintiff is Neal v. Carolina Cent. R. Co., infra.

In Wood v. Bartholomew, 122 N.C. 177, 29 S.E. 959, 960 (Spring Term 1898), Furches, J., speaking then for the Court on the same subject, that is contributory negligence, said: "The burden of the issue of contributory negligence is on the defendants. It is an affirmative issue, and cannot be found by the court. It must be determined by the jury. White v. Suffolk & C. R. Co., 121 N.C. 484, 27 S.E. 1002; State v. Shule, 32 N.C. 153." But in Neal v. Carolina Cent. R. Co., 126 N.C. 634, 36 S.E. 117, 49 L.R.A. 684 (Spring Term 1900), the opinion of the Court, written by the same Justice, established an entirely novel and contradictory doctrine (stating of defendant's plea of contributory negligence of the plaintiff): "When the defendant demurred to the plaintiff's evidence (and but one construction can reasonably be drawn from it; that is, it could not reasonably mean different things), we cannot see why it did not become a question of law, as much so as if the facts stated in the evidence had been agreed to as the facts in the case; and, if this is so, it certainly became a question of law for the court." 126 N.C. 641, 36 S.E. 119. In arguendo stating that "the function of the jury is to find the facts (this must mean disputed facts), and must be exercised where there is evidence proving or tending to prove the facts disputed." 126 N.C. page 640, 36 S.E. page 118.

Douglas, J., and Clark, J., filed able dissenting opinions.

In one respect these questions are water in the tailrace; under this decision, which still prevails, it is within the power of the courts to determine that the affirmative plea of the defendant that plaintiff was contributorily negligent is so established by plaintiff's own evidence that it may be found by the court as a matter of law without submission to the jury. But there comes from the history of its adoption a persistent warning to the Court to observe the narrow terms of our character and the imminent danger of exceeding it; and that in no instance should the case go from the box to the bench unless no reasonable mind could draw any other inference than that the plaintiff was contributorily negligent upon his own evidence.

The condition is thus described in Manheim v. Blue Bird Taxi Corp., 214 N.C. 689, 691, 200 S.E. 382, 383, as: "A judgment of involuntary nonsuit on the ground of contributory negligence of the plaintiff cannot be rendered unless the evidence is so clear on that issue that reasonable minds could draw no other inference."

In Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 29 S.E.2d 740, 742, Mr. Justice Barnhill, writing the opinion of the Court, said: "Proximate cause is an inference of fact, to be drawn from other facts and circumstances. * * * It is only when the facts are all admitted and only one inference may be drawn from them that the court will declare whether an act was the proximate cause of an injury or not. But that is rarely the case. * * * Hence, ``what is the proximate cause of an injury is ordinarily a question for the jury. * * * It is to be determined as a fact in view of the circumstances of fact attending it.'" Nichols v. Goldston, (Hix v. Goldston), 228 N.C. 514, 46 S.E.2d 320.

We are simply "touching the base," by way of remembering the restricting condition upon which we exercise the extraordinary power conferred upon us in this way.

In the instant case, as in many others before us, the interaction of the conduct between the plaintiff's intestate and the driver of the bus at critical moments has been so interwoven with many factors entering into the situation at the Berryhill intersection that we cannot say as a matter of law that plaintiff's intestate was guilty of contributory negligence. While it is not necessary for us to indicate any opinion as to that negligence, it is of course much easier to be convinced that the plaintiff's intestate was contributorily negligent than it is to arrive at the conclusion that he was so as a matter of law.

The case was properly left to the jury on both issues and they have spoken. We find no error.

No error.