Grace Brown TANEY
v.
Ferd BROWN.
No. 27.
Supreme Court of North Carolina.
September 23, 1964.*829 McMichael, Griffin & Rankin, Reidsville, and Crowell & Crowell, Hendersonville, by *830 Hugh P. Griffin, Jr., Reidsville, for defendant appellant.
Whitmire & Whitmire, by R. Lee Whitmire, Hendersonville, for plaintiff appellee.
PARKER, Justice.
When this action came on to be heard in the general county court, the parties, pursuant to the provisions of G.S. § 1-184 et seq., waived trial by jury. On defendant's appeal to the superior court, Judge McLean overruled all of defendant's assignments of error and affirmed the judgment of the general county court. Defendant assigns as errors Judge McLean's denial of his motion for judgment of compulsory nonsuit made at the close of plaintiff's case and his denial of a like motion renewed at the close of all the evidence, and his entering a judgment affirming the judgment of the general county court.
Defendant has no exception to the admission of evidence or to the findings of fact or to the conclusions of law. Consequently, such findings of fact are presumed to be supported by competent evidence and are binding upon appeal. Schloss v. Jamison, 258 N.C. 271, 128 S.E.2d 590; City of Goldsboro v. Atlantic Coast Line R. Co., 246 N.C. 101, 97 S.E.2d 486; James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759. By reason of such facts above stated, defendant's motion for judgment of compulsory nonsuit renewed at the close of all the evidence does not "present the question as to whether or not the findings of fact are supported by competent evidence." City of Goldsboro v. Atlantic Coast Line R. Co., supra; G.S. § 1-183; Clifton v. Turner, 257 N.C. 92, 125 S.E.2d 339.
This Court said in City of Raleigh v. Morand, 247 N.C. 363, 100 S.E.2d 870: "Likewise, since no exceptions were taken to the findings of fact or conclusions of law, the exception to the refusal of the court to grant the appellants' motion for judgment as of nonsuit presents no question for review with respect to the findings of fact or the conclusions of law. City of Goldsboro v. Atlantic Coast Line R. Co., supra [246 N.C. 101, 97 S.E.2d 486]. The exception to the signing of the judgment, however, does present these questions: (1) Do the facts found support the conclusions of law and the judgment entered thereon, and (2) does any error appear upon the face of the record?"
Defendant contends in essence that the findings of fact do not support the conclusion of law that the defendant's negligence "was the immediate, direct, and sole proximate cause of the injuries and damage sustained by the plaintiff," and the judgment entered in her favor. He contends that the sole and only conclusion of law that can be made upon the findings of fact is that plaintiff was negligent in attempting to pass defendant's truck at an intersection in violation of G.S. § 20-150(c), and in not reducing her speed and keeping her automobile under control in violation of G.S. § 20-141 (c), and that such negligence proximately contributed to her injuries, and that such a necessary conclusion of law will not support a judgment in plaintiff's behalf, but will only support a judgment barring any recovery by her in this action.
Defendant further contends that the facts found do not support the conclusion of law "that the intersection of the rural road with Highway 158 was not an `Intersecting highway' within the meaning of" G.S. § 20-150 (c).
It is a fundamental principle that the only contributory negligence of legal importance is contributory negligence which proximately causes or contributes to the injury under judicial investigation. Short v. Chapman, 261 N.C. 674, 136 S.E.2d 40. "The very term `contributory negligence' ex vi termini implies or presupposes negligence on the part of the defendant." Carolina Scenic Stages v. Lowther, 233 N.C. 555, 64 S.E.2d 846.
The unchallenged findings of fact amply support the conclusion of law that defendant was guilty of actionable negligence. *831 Carolina Cas. Insurance Co. v. Cline, 238 N.C. 133, 76 S.E.2d 374; Grimm v. Watson, 233 N.C. 65, 62 S.E.2d 538; Howard v. Bingham, 231 N.C. 420, 57 S.E.2d 401.
A question presented for decision is: Do these unchallenged findings of fact support the legal conclusion that defendant's negligence was the immediate, direct, and sole proximate cause of plaintiff's injuries? What is the proximate cause of an injury is ordinarily a question for a jury. It is to be determined as a fact from the attendant circumstances. Conflicting inferences of causation arising from the evidence carry the case to the jury. Pruett v. Inman, 252 N.C. 520, 114 S.E.2d 360. But in the instant case the waiver of a jury trial by the parties invested the trial judge with the dual capacity of judge and juror, and it was his duty to weigh the evidence, find the facts, and upon the conflicting inferences of causation of plaintiff's injuries here to draw the inferences; the ultimate issue was for him. Turnage Co. v. Morton, 240 N.C. 94, 81 S.E.2d 135; Bizzell v. Bizzell, 247 N.C. 590, 101 S.E.2d 668; Everette v. D. O. Briggs Lumber Co., 250 N.C. 688, 110 S.E.2d 288.
Conflicting inferences of causation of plaintiff's injuries arise from the unchallenged findings of fact here, and a jury trial having been waived by the parties it was for the judge to find the ultimate issue.
The unchallenged findings of fact show that while plaintiff's automobile and defendant's truck were traveling west on U. S. Highway 158 about 13 miles west of the city of Reidsville, and at a point where plaintiff could see at least a thousand feet beyond defendant's truck, and when there was no oncoming traffic, she drove her automobile across the white center line of the highway into the eastbound traffic lane and accelerated the speed of her automobile to 50 to 55 miles an hour to overtake and pass defendant's truck traveling at a speed of 25 to 30 miles an hour. That when she reached a point in the eastbound traffic lane about 50 or 75 or 100 feet from the rear of defendant's truck, she blew her horn. Defendant gave no sign or signal of any kind. When she reached a point beside defendant's truck and was running abreast with it, defendant suddenly and without warning or signal turned his front wheels to the left and drove across the center line of the highway with his left front wheel a distance of one yard. When she realized he was attempting to turn left into a rural road, she suddenly turned her front wheels to the left to avoid being hit by his truck. That in doing so she lost control of her automobile, and her automobile out of control proceeded on along the shoulder of the highway, across the entrance into the highway of the rural road, got back over on the right side of the highway, and ran off the highway and struck a tree.
The unchallenged findings of fact warrant the inferences that plaintiff could reasonably assume that she could pass defendant's truck in safety before the vehicles reached any intersection, and that she would have done so had it not been for defendant's improvident and negligent act in suddenly driving his truck onto the left half of the highway; that defendant's negligence caused her to lose control of her automobile and that her automobile proceeded on along the shoulder of the highway, across the entrance into the highway of the rural road, got back over on the highway and ran off the highway and struck a tree, resulting in her injuries; that this followed so quickly and is so connected with defendant's negligence in the operation of his truck that it constituted a direct chain of events resulting from defendant's negligence; that defendant under the facts found could reasonably foresee that consequences of an injurious nature would probably result from his negligence; and that such negligence on defendant's part was the immediate, direct, and sole proximate cause of plaintiff's injuries. The judge so concluded, and his conclusion is supported by the unchallenged findings of fact.
The unchallenged findings of fact would permit, but they do not compel, the conclusion *832 that plaintiff attempted to pass defendant's truck at an intersection in violation of G.S. § 20-150(c) and G.S. § 20-141(c), and that her negligence in doing so proximately contributed to her injuries. However, the trial judge, a jury trial having been waived, did not draw this conclusion.
Conceding, without deciding, that the legal conclusion "that the intersection of the rural road with Highway 158 was not an `Intersecting highway'" within the meaning of G.S. § 20-150(c) is not supported by the findings of fact and is erroneous, it was not sufficiently prejudicial to upset the judgment below, because the legal conclusion that defendant's negligence was the immediate, direct, and sole proximate cause of plaintiff's injuries, which finds support in the unchallenged findings of fact, is a legal conclusion to the effect that even if plaintiff were negligent, her negligence did not proximately contribute to her injuries.
The unchallenged findings of fact support the legal conclusions, and they in turn support the judgment. All defendant's assignments of error are overruled, and the judgment below is
Affirmed.