Gibson v. Tucker , 42 N.C. App. 214 ( 1979 )

PARKER, Judge.

Summary judgment for defendants was properly allowed. Although the affidavits filed in support and in opposition to defendants’ motion disclose that a genuine issue of fact exists between the parties as to the exact location of defendants’ tractor-trailer and as to whether it was lighted or unlighted when the collision occurred, plaintiff’s own affidavit and his sworn testimony given at the prior trial disclose that, even if his version of the disputed facts is accepted as true, he was guilty of contributory negligence as a matter of law. Thus, there is no genuine issue as to any material fact and defendants are entitled to a judgment as a matter of law.

While it may be generally conceded that summary judgment will not usually be as feasible in negligence cases, where the standard of the prudent man must be applied, as it would in other types of cases, Gladstein v. South Square Assoc., 39 N.C. App. 171, 249 S.E. 2d 827 (1978), summary judgment will be proper also in negligence cases where it appears that even if the facts as claimed by the plaintiff are proved, there can be no recovery. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E. 2d 425 (1970).

In the present case, accepting plaintiff’s affidavit and his sworn testimony at the prior trial as true, and viewing all of the evidentiary materials filed in connection with the motion for summary judgment in the light most favorable to the plaintiff as the non-movant, plaintiff’s own evidence discloses that he saw defendants’ tractor-trailer while he was still approximately 200 feet away from it, that when he first saw it he realized it was standing still and blocking approximately five feet of the right-hand westbound traffic lane in which he was driving, that there was no obstruction in the remaining approximately nineteen feet of the westbound lanes to the left of defendants’ vehicle, that plaintiff saw and realized that this was so, and yet he failed to turn his vehicle to the left even to the slight degree required to allow it to pass freely by defendants’ stopped tractor-trailer. Instead, he continued to drive straight ahead until the collision occurred. These facts, all of which are shown by plaintiff’s own testimony and affidavit, establish his contributory negligence as a matter of law. “What is negligence is a question of law, and when the facts are admitted or established, the court must say whether it does or does not exist.” McNair v. Boyette, 282 N.C. 230, 236, 192 S.E. 2d 457, 461 (1972).

The summary judgment for defendants is

Affirmed.

Chief Judge MORRIS and Judge MARTIN (Harry C.) concur.