Exum v. . Baumrind , 210 N.C. 650 ( 1936 )

STACY, C. J., dissenting.

CONNOR, J., concurs in dissent. This was an action for the alleged wrongful death of the plaintiff's intestate, caused by a collision on a State Highway between a motorcycle upon which the intestate was riding and an automobile owned and driven by the appellant.

A nonsuit was entered as to the defendant N. Baumrind, from which no appeal was taken.

The action, as it related to the defendant Sadie Baumrind, was tried upon the usual issues of negligence, contributory negligence, and damage. The jury answered the issues in favor of the plaintiff, and from judgment based on the verdict the defendant Sadie Baumrind appealed, assigning as error the refusal of the court to grant her motion for judgment as in case of nonsuit made when the plaintiff had introduced her evidence and rested her case and renewed after all the evidence on both sides was in. C. S., 567.

On the argument it was conceded that there was sufficient evidence of the defendant's negligence to carry the case to the jury, but it was earnestly argued that the plaintiff's own evidence established the contributory negligence of her intestate, and that upon authority of Holtonv. R. R., 188 N.C. 277, and similar cases, the motion for judgment as in case of nonsuit should have been granted.

While there was evidence introduced by the plaintiff, as well as by the defendant, tending to establish the contributory negligence of the intestate, we cannot hold as a matter of law that such evidence did establish such contributory negligence.

All the evidence tended to show that the collision occurred as the defendant attempted to drive her automobile around and past another automobile approaching a curve and going in the same direction, and that she was unable to get by the other automobile so as to pull her automobile back to her right side of the road before the intestate, coming in the opposite direction on his motorcycle, collided with her automobile on her left side and on his right side of the road.

The evidence introduced by the plaintiff and relied upon by the defendant to prove the plaintiff out of court was to the effect that the intestate had owned and operated a motorcycle for only thirty days, and that when the collision between his motorcycle and the defendant's automobile took place he was driving the motorcycle at a rate of fifty or sixty miles per hour, and had just come around a curve. While prior to the enactment of sec. 4, ch. 311, Public Laws 1935 (N.C. Code of 1935 [Michie], sec. 2621 [46]), the operation of a motor driven vehicle upon the highways of the State at a greater rate of speed than forty-five miles per hour was unlawful, and therefore negligence per se, since said enactment such operation is only prima facie evidence of negligence, and for that reason it was proper for his Honor to submit the issue as to contributory negligence to the jury, under appropriate instructions. The charge not being contained in the record, it is presumed that such appropriate instructions were given to the jury.

There is some evidence in the record that the intestate slackened the speed of his motorcycle before colliding with the plaintiff's automobile.

There are no assignments of error except the one to the refusal of the court to grant the motion for judgment as in case of nonsuit, and since this cannot be sustained the judgment of the Superior Court must be

Affirmed.