McLean v. Henderson

WEBB, Judge.

The only question presented on appeal is whether it was error for the court to direct a verdict in defendants’ favor at the close of plaintiff’s evidence. If the testimony of the plaintiff, that she did not see lights coming from either direction, is evidence from which the jury could conclude that defendant Henderson approached the intersection without lights, the jury could conclude that the defendant Henderson’s violation of G.S. 20-129 was a proximate cause of the accident. The jury could also conclude from this evidence that plaintiff was not contributorily negligent in entering the intersection when she did not see approaching headlights. See McNulty v. Chaney, 1 N.C. App. 610, 162 S.E. 2d 90 (1968). We hold the plaintiff’s testimony, that she did not see any lights approaching the intersection, is evidence from which the jury could conclude that defendant Henderson’s headlights were not on. We hold the superior court committed error in directing a verdict for the defendants.

The defendants argue that a directed verdict was proper because the only evidence is the testimony of the plaintiff that she did not see approaching headlights, and this is negative evidence. See Leisure Products v. Clifton, 44 N.C. App. 233, 260 S.E. 2d 803 (1979). In the case sub judice, the plaintiff had adequate opportunity to observe whether headlights were on. She testified she looked both ways and did not see any headlights. This is evidence from which the jury could conclude the headlights were not on.

The defendants also argue that the plaintiff testified it was too dark for her to drive without her headlights which would have made it impossible for the defendant Henderson to drive without his headlights. We believe this is an argument which should be made to the jury.

Reversed.

Judges Hedrick and Wells concur.