Brown v. Weaver

MORRIS, J.

Plaintiff’s only assignment of error is bottomed on whether the granting of defendant’s motion for nonsuit and the subsequent dismissal of plaintiff’s suit was error. In Bowen v. Gardner, 275 N.C. 363, 168 S.E. 2d 47 (1969), the Court presents five rules to be followed when a motion for nonsuit is being considered. They are:

“1. All the evidence which tends to support plaintiff’s claim must be taken as true and considered in its light most favorable to plaintiff, giving her the benefit of every reasonable inference which legitimately may be drawn therefrom. (Citation omitted.)

2. Contradictions, conflicts and inconsistencies are resolved in plaintiff’s favor. (Citations omitted.)

3. Defendants’ evidence which contradicts that of the plaintiff, or tends to show a different state of facts is disregarded. (Citations omitted.) Only that part of it which is favorable to plaintiff can be considered. (Citations omitted.)

4. Acts of contributory negligence not alleged in the answer should be ignored. (Citations omitted.)

5. When opposing inferences are permissible from plaintiff’s evidence, nonsuit on the basis of contributory negligence as a matter of law should be denied. (Citations omitted.)”

A nonsuit should not be allowed if the evidence presents material conflicts or if there are reasonable inferences to be drawn from the evidence other than that defendant was not negligent or that his negligence was not the proximate cause of the injuries complained of. Price v. Miller, 271 N.C. 690, 157 S.E. 2d 347 (1967). Nonsuit on the ground of plaintiff’s contributory negligence is proper only when plaintiff’s evidence, considered in the light most favorable to her, so clearly establishes her own negligence as one of the proximate causes of her injuries that no other reasonable inference may be drawn. Carter v. Murray, 7 N.C. App. 171, 171 S.E. 2d 810 (1970).

Applying these principles to the evidence in the instant case, we hold that it was error to grant defendant’s motion for nonsuit and dismiss the action.

Reversed.

Mallaed, C.J., and Geaham, J., concur.