Gregory v. Adkins , 7 N.C. App. 305 ( 1970 )

PARKER, J.

Appellant’s sole assignment of error is directed to the granting of defendant’s motion for nonsuit. The judgment of nonsuit should be sustained if (1) the evidence taken in the light most favorable to plaintiff fails to show negligence on the part of defendant, or (2) plaintiff’s own evidence establishes contributory negligence as the sole reasonable conclusion. Price v. Miller, 271 N.C. 690, 157 S.E. 2d 347. We find it unnecessary to resolve both of these issues for the determination of this appeal. Assuming arguendo that plaintiff’s evidence was sufficient to present a case for the jury on the issue of defendant’s negligence, we hold that nonsuit was proper in any event because plaintiff’s own evidence established his contributory negligence as a matter of law.

A judgment of nonsuit on the ground of the plaintiff’s contributory negligence can be granted only when the plaintiff’s evidence, taking it to be true and considering it in the light most favorable to him, resolving all contradictions therein in his favor, and giving him the benefit of every legitimate inference in his favor which can be reasonably drawn therefrom, so clearly establishes his own negligence as one of the proximate causes of his injury that no other reasonable conclusion can be drawn. Anderson v. Carter, 272 N.C. 426, 158 S.E. 2d 607. Considering plaintiff’s evidence in the manner prescribed by the foregoing well-established rule, we are of the opinion and so hold that it leads inescapably to the conclusion that he did not use that care for his own safety which an ordinarily prudent man in the same circumstances would have used, and that his failure so to do was one of the proximate causes of his injuries. He voluntarily stood in the main traveled portion of a heavily-traveled high speed highway in the nighttime, in front of a stalled black vehicle, the major portion of which was within the highway. Even assuming that the lights on the stalled vehicle were burning, thereby resolving the conflict in evidence in that regard in plaintiff’s favor, a clear and obvious danger still remained that a fast moving vehicle might collide with the rear of the stopped car and that a person standing immediately in front thereof would be injured. Nevertheless, plaintiff voluntarily placed himself, and for an appreciable period of time remained, in this position of obvious peril. During this time he observed three vehicles go by the stalled automobile at high speed and only three or four feet from the place plaintiff was standing. Plaintiff himself testified that he knew his danger and that there was no reason he could not have stepped off the road to a place of safety.

Underwood v. Usher, 261 N.C. 491, 135 S.E. 2d 201, cited by appellant, is distinguishable on its facts. The evidence in that case disclosed that the plaintiff in that case and two companions were engaged in pushing a vehicle on the highway when it was struck from behind. The road was straight and level, the collision occurred in a residential section, street lights were burning and visibility was good, and there was no heavy traffic. The trial court judgment overruling motion for nonsuit was sustained. Our Supreme Court speaking through Parker, J., (later C.J.) said: “We believe that fair-minded men could reasonably draw from plaintiff’s evidence a legitimate conclusion that plaintiff did not voluntarily place himself in a position of peril known to him and voluntarily continue therein and that he was free from contributory negligence.” In the case before us we are compelled to come to the opposite conclusion.

The judgment of nonsuit here appealed from is Affirmed.

Campbell and HedeiCK, JJ., concur.