Daniel W. WILLIAMS, Administrator of the Estate of James Daniel Williams
v.
Calvin Coolidge HALL and Dubose Lumber Corporation.
No. 68SC150.
Court of Appeals of North Carolina.
July 10, 1968.*85 D. K. Stewart and Bryan, Bryan & Johnson, by Robert C. Bryan, Dunn, for plaintiff appellant.
Holland & Poole, by R. Maurice Holland, Roseboro, Butler & Butler, by Edwin E. Butler, Clinton, and Morgan & Jones, by Robert B. Morgan, Lillington, for defendants appellees.
BRITT, Judge.
Two questions are presented for our determination: (1) Was the evidence offered by plaintiff sufficient to make out a case of actionable negligence against the defendants? (2) Did the plaintiff's evidence, considered in the light most favorable to him, show that plaintiff's intestate was contributorily negligent as a matter of law?
In their brief and argument on this appeal, defendants apparently have conceded, *86 and we agree, that there was sufficient evidence of negligence on the part of defendant Hall to take that issue to the jury. Plaintiff alleged that defendants violated the provisions of G.S. § 20-161 (a), and the evidence was more than sufficient to support the allegation.
Defendants contend, however, that their motion for nonsuit was properly allowed on the grounds that plaintiff's intestate was guilty of contributory negligence as a matter of law, and this contention is the principal question presented by this appeal.
In Bass v. McLamb, 268 N.C. 395, 150 S.E.2d 856, in an opinion written by Branch, J., the following was said:
"We recognize the well-established rule that `A motion for judgment of nonsuit on the ground of contributory negligence will be granted only when plaintiff's own evidence establishes the facts necessary to show contributory negligence so clearly that no other conclusion can be reasonably drawn therefrom.' Johnson v. Thompson, Inc., 250 N.C. 665, 110 S.E.2d 306."
In Galloway v. Hartman, 271 N.C. 372, 156 S.E.2d 727, we find the following:
"Nonsuit on the ground of contributory negligence should be allowed only when plaintiff's evidence, taken in the light most favorable to him, so clearly establishes the defense that no other reasonable inference or conclusion can be drawn therefrom. Waters v. Harris, 250 N.C. 701, 110 S.E.2d 283; Hood v. Queen City Coach Co., 249 N.C. 534, 107 S.E.2d 154. Further, nonsuit on the ground of contributory negligence should be denied if diverse inferences upon the question are permissible from plaintiff's proof. Wooten v. Russell, 255 N.C. 699, 122 S.E.2d 603."
At the trial of this action, evidence was introduced by plaintiff and the defendants, the motion for nonsuit being allowed at the close of all the evidence. Defendants stress the evidence of excessive speed on the part of plaintiff's intestate and contend that the judgment was justified primarily on the showing of excessive speed.
It is well established in this jurisdiction that upon motion to nonsuit, the plaintiff's evidence is taken as true and considered in the light most favorable to him, giving him the benefit of every fact and inference of fact pertaining to the issues which may be reasonably deduced from the evidence, and defendant's evidence which tends to impeach or contradict plaintiff's evidence is not considered. It is elementary that discrepancies and contradictions even in plaintiff's evidence are matters for the jury and not the judge. Greene v. Meredith, 264 N.C. 178, 141 S.E.2d 287.
The burden of proof on the issue of contributory negligence is on the defendants. They contend that plaintiff's intestate was either exceeding the maximum speed limit or was driving faster than was reasonable and prudent under the conditions existing. Although there was elicited from plaintiff's witnesses evidence that would infer excessive speed, we are of the opinion that plaintiff's evidence did not show excessive speed or other negligence on the part of plaintiff's intestate sufficiently to constitute contributory negligence as a matter of law.
We hold that upon the evidence presented by plaintiff in the trial of this action, he was entitled to have the issues answered by the jury. The judgment of the Superior Court is
Reversed.
CAMPBELL and MORRIS, JJ., concur.