McNulty v. Chaney

Mallard, C.J.

Plaintiff’s decedent died on 21 February 1967 as a result of injuries he received when the 1967 MG A roadster owned by Joseph F. McNulty which plaintiff’s decedent was operating northward on a servient road in Randolph County known as Arrow-wood Road, collided with a 1963 Chevrolet automobile owned by Clyde R. Chaney and operated by Bert Wayne Chaney. The collision occurred as the MG automobile entered the intersection of Arrow-wood Road with Highway #64 in Randolph County. The MG automobile was damaged.

The evidence offered by plaintiff was contradictory but when taken in the light most favorable to plaintiff, as we are required to do, tends to show that the defendant Bert Wayne Chaney was operating a dark blue 1963 model Chevrolet automobile owned by his father, Clyde R. Chaney, eastward on Highway #64 in Randolph County. It was a dark, rainy, foggy night and at a time when there was not sufficient light to render clearly discernible a person on the highway at a distance of two hundred feet ahead. The defendant had amber parking lights on but did not have lighted head lamps as required by G.S. 20-129. The violation of G.S. 20-129 constitutes negligence per se. Williamson v. Varner, 252 N.C. 446, 114 S.E. 2d 92; Scarborough v. Ingram, 256 N.C. 87, 122 S.E. 2d 798. There is also evidence which, if believed, would constitute contributory negligence on the part of plaintiff’s decedent, particularly as to whether he kept a proper lookout and saw what he should have seen. However, we are of the opinion that if the defendant’s automobile did not have head lights burning, and if it was so dark that he should have, the question of contributory negligence is for the jury as to whether plaintiff’s decedent was contributorily negligent in that he should have seen defendant’s automobile approaching and before he entered Highway #64, after stopping for the stop sign. In Raper v. Byrum, 265 N.C. 269, 144 S.E. 2d 38, Justice Lake said:

“Since the burden of proof on the issue of contributory negligence is upon the defendants, a motion for judgment of involuntary nonsuit upon that ground should be allowed only when the plaintiff’s evidence, considered alone and taken in the light most favorable to him, together with all inferences favorable to him which may reasonably be drawn therefrom, so clearly establishes the defense that no other conclusion can reasonably be drawn.”

We are of the opinion and so decide upon the conflicting evidence before us that jury questions were presented. Since each case will go back for a new trial, we refrain from a detailed discussion of the evidence. The trial court erred in granting the motion for judgment as of involuntary nonsuit.

New trial.

Brock and Parker, JJ., concur.