Williams v. Kirkman , 232 N.C. 609 ( 1950 )

61 S.E.2d 706 (1950) 232 N.C. 609

WILLIAMS
v.
KIRKMAN.

No. 381.

Supreme Court of North Carolina.

November 8, 1950.

Ottway Burton, Asheboro, for plaintiff, appellee.

Spence, Smith & Walker, Asheboro, for defendant, appellant.

STACY, Chief Justice.

The question for decision is whether the evidence making for plaintiff's cause survives the demurrer, carries the case to the jury and suffices to support the verdict. The trial court answered in the affirmative and we approve.

The evidence readily permits an inference of excessive speed and reckless driving on the part of the defendant. This was in violation of law and calls for a jury verdict, unless the plaintiff's own evidence establishes his contributory negligence as a matter of law. The trial court was of opinion that it did not and that the issue was one for the twelve. We agree. Bailey v. Michael, 231 N.C. 404, 57 S.E.2d 372; Gladden v. Setzer, 230 N.C. 269, 52 S.E.2d 804; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Hancock v. Wilson, 211 N.C. 129, 189 S.E. 631.

There is evidence to the effect that the defendant approached the point of collision at a negligent rate of speed; that he saw the plaintiff peddling his bicycle towards the intersection at a fast pace when he, the plaintiff, was yet 50 feet away, and that the defendant by reason of his own speed—he then being from 50 to 75 feet above the intersection—was unable to avoid the collision, albeit he applied his brakes immediately upon noticing the plaintiff. "When I saw him", the defendant says, "I hit my brakes because he was coming fast". And yet the defendant says he was traveling only 40 to 50 miles an hour. How fast was he going? The witnesses do not agree. The jury alone may answer.

Conceding the sufficiency of defendant's evidence to support a finding of contributory negligence on the part of the plaintiff, still this is the defendant's evidence to be considered by the jury on the issue, but not by the court on a motion for judgment as in case of nonsuit. Bailey v. Michael, supra; Barlow v. City Bus Line, 229 N.C. 382, 49 S.E.2d 793; Phillips v. Nessmith, 226 N.C. 173, 174, 37 S.E.2d 178; Lincoln v. Atlantic Coast Line R. Co., 207 N.C. 787, 178 S.E. 601.

It is only when the plaintiff proves himself out of court that a judgment of nonsuit may be entered on the issue of contributory negligence. Bailey v. Michael, supra; Howard v. Bingham, 231 N.C. 420, 57 S.E.2d 401. When the plaintiff goes upon the witness-stand he necessarily subjects himself to cross-examination, and here is where his admissions may be fatal to his case. But even then, mere discrepancies or contradictions in his evidence will not take the case from the jury. Bailey v. Michael, supra; Emery v. Lititz Mut. Ins. Co., 228 N.C. 532, 46 S.E.2d 309; Shell v. Roseman, 155 N.C. 90, 71 S.E. 86. He must show or reveal, without opposing inference, that he was contributorily negligent. Speaking to the point in Battle v. Cleave & Rogers, 179 N.C. 112, 101 S.E. 555, 556, Hoke, J., with his usual clarity and accuracy of statement, put it this way: "The burden of showing contributory negligence, however, is on the defendant, and the motion for nonsuit may never be allowed on such an issue where the controlling and pertinent facts are in dispute, nor where opposing inferences are permissible from plaintiff's proof, nor where it is necessary in support of the motion to rely, in whole or in part, on evidence offered for the defense". Bailey v. Michael, 231 N.C. 404, 57 S.E.2d 372; Templeton v. Kelley, 215 N.C. 577, 2 S.E.2d 696; Ferguson v. City of Asheville, 213 N.C. 569, 197 S.E. 146.

This is the only question presented by the appeal. As the ruling below is approved, the verdict and judgment will be upheld.

No error.