Plaintiff assigns as error the submission to the jury of the issue of contributory negligence, the charge of the court with respect to sudden emergency, and portions of the charge stating plaintiff’s con
On the question of contributory negligence, if there is evidence from which the inference of contributory negligence may be drawn by men of ordinary reason, the issue is properly submitted to the jury. Jones v. Holt, 268 N.C. 381, 150 S.E. 2d 759.
The plaintiff offered evidence tending to show: The collision occurred approximately a quarter of a mile south of N. C. 280 on U. S. 25. U. S. 25 is the main road between Hendersonville and Ashe-ville, was a two-lane road at that time, and 21 feet wide. The accident occurred almost directly in front of the Skyline Drug Store which is on the right hand side of the road to northbound traffic. There is a paved parking lot between the highway and the drug store extending approximately 25 feet to either side of the building and approximately 50 to 75 feet in front of the building. There are two entrances to the parking lot. After the collision, plaintiff’s car was sitting in the southbound lane headed south and Mr. Baker’s car was behind it sitting at a right angle to a ditch also headed south. There was a median or divider between the entrances to the parking lot and also between the highway and the parking lot. When the patrolman arrived, there were two solid black lines originating in the northbound lane and proceeding over into the southbound lane approximately 60 feet in length and stopped about 8 feet from the debris (broken glass and dirt) on the highway. Other marks approximately 39 feet long were located in the northbound lane north of the Taylor and Baker cars. The parking lot is fairly level with only a slight incline, if any. There is a drainage ditch approximately two or three feet from the edge of the pavement of the highway, which ditch, a foot or two deep, runs along the eastern side of the highway across the divider. There was a normal width shoulder, then the drop to the ditch itself, then the bank was inclined on up to the parking lot. Mrs. Carter stated to the patrolman that she got out of her car, went into the drug store and that she looked out and her car had rolled in the ditch. Traveling north, the road comes around a curve and leads up on a straight stretch of road. The accident occurred on the straight stretch. There is a railroad trestle or bridge over the road just as you come out of the curve. There was a hog wire fence with vines and whatnot on it slightly to the south of the driveway. The fence is six or eight feet from the edge of the highway and close to 50 feet from the southern edge of the southern entrance to the parking lot (or 60 or 70 feet from parking lot according to Mrs. Rice). From the trestle you can see approximately an eighth of a
Defendants’ evidence tended to show: Femme defendant, with her 10 year old daughter, parked the 1960 Ford in front of the drug store, put it in first gear and turned off the motor. She didn’t engage the emergency brake. When she had been in the drug store two or three minutes, she heard brakes screeching, ran to the front window and saw her car in the ditch and two other cars on the road. When she got out to the scene, she observed that the rear wheels of her car were in the ditch. It was possible to walk between the pavement and her car. The debris in the road was to the south of her car about 50 feet. The fence post is about ten feet from the south entrance of the parking area and is covered with honeysuckle. It is 110 feet paced off from the trestle to the fence line. From the center of the ditch to the edge of the pavement is six feet. From the center of the rear wheel to the extreme edge of the bumper of the Ford is five feet. Mr. Joe Shepherd came up immediately after the accident driving an F7 oil truck tanker. The cars had not been moved. Neither he nor the cars in front of him had any difficulty passing the Ford car. The two rear wheels of the car were in the ditch suspended in the air. The back bumper was sitting on the shoulder of the road. No part of the framework was on the highway.
In determining the sufficiency of the evidence to justify the submission of an issue of contributory negligence, we must consider the evidence in the light most favorable to the defendants. Jones v. Holt, supra. In so doing, the evidence shows that plaintiff could have seen the parking lot and the Ford car of defendants rolling backward toward the highway at a speed of about 5 miles per hour as she passed under the trestle some 200 feet away; that she and her passenger were engaged in conversation which terminated as she was opposite the fence at which time she looked up and saw the car; that even then she was 75 feet from the point of collision which occurred 50 to 60 feet south of the point at which defendants’ car stopped in the ditch, which meant that plaintiff had at least 125 feet within which to stop her car or bring it under control.
Plaintiff also contends that the court erred in its instructions with respect to the doctrine of sudden emergency. The portion of the charge which plaintiff argues is error is as follows:
“In (sic) instruct you, Members of the Jury, that if you find by the greater weight of the evidence, the burden being upon the defendants to so satisfy you, that the plaintiff Taylor could have seen the defendants’ moving car when the plaintiff was coming under the trestle some 200 feet from the point of impact if she had been keeping a proper and reasonable lookout then the plaintiff would not be entitled to the benefits of the sudden emergency doctrine.
{B)ut if you find that the plaintiff, not being negligent herself, was confronted with a sudden emergency by the defendants’ car suddenly appearing before her approaching her in her lane of travel and that she was required to act immediately to avoid that car and that the plaintiff acted as a reasonably prudent person under the same or similar circumstances would have acted, it would be your duty to answer the second issue No.”
Plaintiff contends this portion of the charge is not in accord with the evidence and incorrectly states plaintiff’s contentions. Any error of the court in stating plaintiff’s contentions was not called to the court’s attention, and objection thereto at this stage cannot be sustained. Rudd v. Stewart, 255 N.C. 90, 120 S.E. 2d 601. The evidence amply justifies the charge.
Plaintiff further assigns other portions of the charge as prejudicial error for that the court incorrectly stated plaintiff’s contention. For reasons already stated, this assignment of error is overruled.
We find no prejudicial error in the admission of Mr. Carter’s testimony as to the condition of the ditch bank the day following the accident.
Other assignments of error not brought forward and argued in plaintiff’s brief are deemed abandoned.
In the trial of this case, we find
No error.