Grimm v. Watson

62 S.E.2d 538 (1950) 233 N.C. 65

GRIMM
v.
WATSON.

No. 603.

Supreme Court of North Carolina.

December 13, 1950.

Seawell & Seawell, Carthage, for defendant, appellant.

Spence & Boyette, Carthage, for plaintiff, appellee.

ERVIN, Justice.

The defendant reserved exceptions to the refusal of his motions for a compulsory nonsuit under G.S. § 1-183.

Under the statute codified as G.S. § 20-154, any person who undertakes to drive a motor vehicle upon a highway must exercise reasonable care to ascertain that such movement can be made in safety before he turns either to the right or the left from a direct line. Besides he is required by the same statute to signal his intention to turn in the prescribed manner and for the specified distance before changing his course "whenever the operation of any other vehicle may be affected by such movement. " A motorist violates G.S. § 20-154 and in consequence is negligent as a matter of law if he fails to observe either of these statutory precautions in changing the course of his vehicle upon the highway, and his negligence in such respect is actionable if it proximately causes injury to another. Cooley v. Baker, 231 N.C. 533, 58 S.E.2d 115. This being so, the issue of whether the driver of the defendant's bus was guilty of actionable negligence was rightly adjudged to be a question of fact for the determination of the jury.

This brings us to the defendant's contention that the plaintiff was contributorily negligent as a matter of law.

The plea of contributory negligence in this case is simply this: (1) That the plaintiff drove his automobile upon the highway at an excessive speed and without keeping a proper lookout; and (2) that such specific acts of negligence proximately contributed to the plaintiff's damage and injury. The controlling rule on this phase of the litigation is elaborated in Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307, 309, where this language is used: "Contributory negligence is an affirmative defense which the defendant must plead and prove. G.S. § 1-139. Nevertheless, the rule is firmly embedded in our adjective law that a defendant may take advantage of his plea of contributory negligence by a motion for a compulsory judgment of nonsuit under G.S. § 1-183 when the facts necessary to show the contributory negligence are established by the plaintiff's own evidence."

The testimony of the plaintiff at the trial did not establish the facts indispensable to the defendant's plea of contributory negligence. Hence, the trial judge rightly rejected the argument that the plaintiff was guilty of contributory negligence as a matter of law.

The questions raised by the remaining exceptions have been decided adversely to defendant in well considered precedents, and require no discussion.

The judgment of the Superior Court is upheld, for there is in law

No Error.