Geraline ROUSE
v.
Richard C. PETERSON and Leon H. Herring.
No. 312.
Supreme Court of North Carolina.
April 8, 1964.*551 Whitaker & Jeffress, Kinston, for defendant appellants.
White & Aycock, by Thomas J. White, Kinston, for plaintiff appellee.
PER CURIAM.
Defendants assign as error the denial of their motion for judgment of compulsory nonsuit made at the close of all the evidence. They contend their motion should have been allowed for the reason that plaintiff was guilty of contributory negligence as a matter of law. It is manifest that plaintiff's evidence is sufficient to show that defendants were negligent and that their negligence proximately caused plaintiff's injuries.
The term "contributory negligence" ex vi termini implies, or presupposes negligence on the part of the defendant. Owens v. Kelly, 240 N.C. 770, 84 S.E.2d 163. Contributory negligence is an affirmative defense which the defendant must plead and prove. G.S. § 1-139. Nevertheless, the rule is firmly embedded in our adjective law that a defendant may avail himself of his plea of contributory negligence by a motion for a compulsory judgment of nonsuit under G.S. § 1-183, when, and only when, the facts necessary to show contributory negligence are established so clearly by plaintiff's own evidence that no other conclusion can be reasonably drawn therefrom. Pruett v. Inman, 252 N.C. 520, 114 S.E.2d 360.
Defendants' contentention that plaintiff was guilty of contributory negligence as a matter of law necessitates an appraisal of her evidence in the light most favorable to her. Beasley v. Williams, 260 N.C. 561, 133 S.E.2d 227; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307.
Considered in such light, her evidence tends to show these facts, in addition to the admissions in defendants' answer which she introduced in evidence, and the stipulation entered into by the parties: Three nights before the collision here, Marvin Murphy, a witness for plaintiff, drove up behind defendant Herring's 1949 Ford pickup truck which was being operated on the highway, and there were no taillights burning on the truck on that occasion, though there was a reflector on the left corner of the truck body. He told defendant Herring before this occasion that no taillights were burning on his pickup truck. About 11 p. m. on 27 September 1963, plaintiff was driving her 1960 Comet automobile at a speed of 30 to 35 miles an hour in a 45 miles per hour speed zone and on her side of the road in a westerly direction on U. S. Highway #70 about one-fourth of a mile west of the corporate limits of the city of Kinston. She was meeting an automobile whose headlights were shining on her and blinded her. When this automobile passed her, she saw in front of her at a distance "as far as the width of the courtroom" defendant Herring's 1949 Ford pickup truck standing still with all four wheels on the pavement and with no lights on it and with no one standing about it. The pickup truck was dark red in color. Immediately upon seeing the truck, she applied her brakes and turned her automobile to the left, but could not *552 avoid striking the rear end of the truck with the front part of her automobile. She sustained injuries in the collision.
Plaintiff was driving her automobile within the maximum speed limit. Therefore, she cannot be held contributorily negligent as a matter of law in outrunning her headlights, if she did, which we do not concede, and striking the rear end of the pickup truck stopped on the highway without lights. G.S. § 20-141(e); Beasley v. Williams, supra.
There is nothing in the evidence to indicate or suggest that there was anything which gave or should have given plaintiff notice that a motor vehicle without lights was stopped on the highway in front of her. This Court said in Chaffin v. Brame, 233 N.C. 377, 64 S.E.2d 276: "The duty of the nocturnal motorist to exercise ordinary care for his own safety does not extend so far as to require that he must be able to bring his automobile to an immediate stop on the sudden arising of a dangerous situation which he could not reasonably have anticipated."
In our opinion, plaintiff's own testimony does not establish the facts necessary to show contributory negligence so clearly that no other conclusion may be reasonably drawn therefrom, and that this case falls within the line of the following cases with facts approximately similar, in which contributory negligence has been held to be an issue of fact for the jury. Beasley v. Williams, supra; Keener v. Beal, 246 N.C. 247, 98 S.E.2d 19; McClamrock v. Packing Co., 238 N.C. 648, 78 S.E.2d 749; Chaffin v. Brame, supra; Williams v. Express Lines, 198 N.C. 193, 151 S.E. 197. The trial court properly overruled defendants' motion for judgment of compulsory nonsuit and correctly submitted the case to the jury.
Defendants' other assignments of error brought forward and discussed in their brief relate to the court's charge to the jury. A careful examination of these assignments of error and a reading of the charge contextually disclose no prejudicial error that would warrant a new trial. No new question is presented requiring extended discussion. All defendants' assignments of error are overruled. The verdict and judgment will be upheld.
No error.