Clontz v. Krimminger

116 S.E.2d 804 (1960) 253 N.C. 252

Isaac Avery CLONTZ
v.
N. B. KRIMMINGER, Trading and Doing Business as Krimminger Candy Company, and Paul Judson Smith, Original Defendants, and David Lee Stilwell, Additional Defendant.

No. 244.

Supreme Court of North Carolina.

November 2, 1960.

Sedberry, Sanders & Walker, Charlotte, for plaintiff appellee.

R. Cartwright Carmichael, Jr., Kennedy, Covington, Lobdell & Hickman, Charlotte, for original defendants appellants.

Carpenter & Webb, Charlotte, for additional defendant appellee.

WINBORNE, Chief Justice.

Of the many assignments of error set forth in the record of case on appeal, the determinative question is predicated upon exceptions to the trial court's denial of defendants' motion for judgment as of nonsuit first made at the close of plaintiff's evidence, and aptly renewed at the close of all the evidence.

Taking the evidence offered upon the trial in the light most favorable to plaintiff and giving to him the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom, as is done when considering motion for judgment of nonsuit, this Court is of opinion that the error assigned is well taken.

Indeed it may be conceded for the purposes of considering this question that there is sufficient evidence of negligence on the part of defendant Smith to repel the motion. Thus the inquiry is narrowed to the issue of contributory negligence. In this respect it appears from the testimony of the plaintiff that he was negligent, as a matter of law, and that his negligence contributed to his injury and damage.

"The mere fact of a collision with a vehicle ahead furnishes some evidence that the following motorist was negligent as to speed or was following too closely." 10 Blashfield's Cyc. of Automobile Law and Practice, Per.Ed., Vol. 10, p. 600. And in Wall v. Bain, 222 N.C. 375, 23 S.E.2d 330, 333, the Court laid down the following rule: "It is the duty of the driver of a motor vehicle not merely to look, but to keep an outlook in the direction of travel; and he is held to the duty of seeing what he ought to have seen."

It is also a general rule of law in North Carolina "that the operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. And in the exercise of such duty it is incumbent upon the operator of a motor vehicle to keep same under control, and to keep a reasonably careful lookout, so as to avoid collision with persons and vehicles upon the highway." Smith v. Rawlins, 253 N.C. 67, 116 S.E.2d 184, 185.

It would seem, therefore, that when the testimony of the plaintiff is applied to the rules laid down by this Court that the defendants' motion for nonsuit should have been granted. The plaintiff's own evidence shows that he could at all times see the taillights of the defendant's truck; that he was within 15 feet of the defendant's truck before he realized that it had stopped, and that by this time it was too late for him to either apply his brake or to turn aside in order to avoid a collision. This evidence when viewed in the light most favorable to the plaintiff compels the conclusion that plaintiff did not act as a reasonably prudent man under the circumstances and contributed to his own injury and damage.

As Chief Justice Stacy wrote in Godwin v. Atlantic Coast Line R. R. Co., 220 N.C. 281, 17 S.E.2d 137, 139: "It is the prevailing and permissible rule of practice to enter judgment of nonsuit in a negligence case, when it appears from the evidence offered on behalf of the plaintiff that his own negligence was the proximate cause of the injury or one of them. * * * The plaintiff thus proves himself out of court. * * It need not appear that his negligence was the sole proximate cause of the injury as this would exclude any idea of negligence on the part of the defendant. * * * It is enough if it contribute to the injury. * * The very term ``contributory negligence' ex vi termini implies that it need not be the sole cause of the injury. * * * The plaintiff may not recover, in an action like the present, when his negligence concurs with the negligence of the defendant in proximately producing the injury."

To the same effect are the following cases: Austin v. Overton, 222 N.C. 89, 21 S.E.2d 887; Fawley v. Bobo, 231 N.C. 203, 56 S.E.2d 419; Moore v. Boone, 231 N.C. 494, 57 S.E.2d 783.

Having so decided, other questions presented on this appeal need not be considered.

The judgment below is

Reversed.