DONLOP
v.
SNYDER.
No. 666.
Supreme Court of North Carolina.
December 12, 1951.*318 Don A. Walser, Lexington, for defendant, appellant.
Philip R. Craver and Stoner & Wilson, all of Lexington, for plaintiff, appellee.
JOHNSON, Justice.
The only exceptions brought forward on this appeal relate to the refusal of the trial court to allow the defendant's motion for nonsuit made at the conclusion of the plaintiff's evidence and renewed at the close of all the evidence.
The defendant contends the motion for nonsuit should have been allowed for the reasons (1) that the evidence fails to make out a prima facie case of actionable negligence against the defendant, but (2) if so, that the plaintiff's evidence establishes contributory negligence as a matter of law.
In determining the questions thus presented the rule is that the evidence must be considered in its light most favorable to the plaintiff "and he is entitled to every reasonable intendment and legitimate inference fairly deducible therefrom." Brafford v. Cook, 232 N.C. 699, 62 S.E.2d 327, 328. See also Fowler v. Atlantic Company, Inc., N.C., 67 S.E.2d 496; Ervin *319 v. Cannon Mills Co., 233 N.C. 415, 64 S.E.2d 431.
And where, as here, the motion for judgment of nonsuit is renewed at the close of all the evidence, the court may consider "so much of the defendant's testimony as is favorable to the plaintiff or tends to clarify or explain evidence offered by the plaintiff not inconsistent therewith; but it must ignore that which tends to establish another and different state of facts or which tends to contradict or impeach the testimony presented by the plaintiff." Bundy v. Powell, 229 N.C. 707, at page 711, 51 S.E.2d 307, at page 310. See also Howard v. Bell, 232 N.C. 611, 62 S.E.2d 323.
Contributory negligence is an affirmative defense which must be pleaded and proved. G.S. § 1-139. However, the defendant may take advantage of such plea on motion for nonsuit "when the facts necessary to show the contributory negligence are established by the plaintiff's own evidence." Bundy v. Powell, supra [229 N.C. 707, at page 711, 51 S.E.2d 310]. But, it will not do for the court to rely on any part of the evidence offered by the defendant. Bundy v. Powell, supra; Beck v. Hooks, 218 N.C. 105, at page 112, 10 S.E.2d 608; Lunsford v. Asheville Manufacturing Co., 196 N.C. 510, 146 S.E. 129.
And it is firmly established by the decisions of this Court that a motion for nonsuit on the ground of contributory negligence shown by the plaintiff's evidence will be allowed only when the evidence is so clear that no other reasonable inference is deducible therefrom. Bundy v. Powell, supra; Fowler v. Atlantic Company, Inc., supra.
An examination of the evidence in the light of these principles of law impels the conclusion that the plaintiff made out a prima facie case of actionable negligence, free of facts and circumstances shown by his own evidence entitling the defendant to judgment of nonsuit on the ground of contributory negligence.
This conclusion is supported by the evidence showing these factors: (1) that the night was rainy and foggy, indicating limited visibility; (2) that the plaintiff, after stopping and looking, moved slowly through the intersection in second gear, and was hit from the right side as the front part of his car was emerging from the far side of the intersection; (3) the defendant's admission that he saw the plaintiff "in the intersection but * * * was coming so fast he could not stop"; and (4) the evidence as to the position and condition of the plaintiff's car after the wreck, showing it was practically demolished,knocked sideways beyond the curb and embedded in a tree, after breaking off a fire hydrant and a 14-inch telephone pole.
This evidence supports the inference that the plaintiff was first in the intersection and that the defendant negligently failed to yield the right-of-way to him as required by G.S. § 20-155(b), as amended. This statute provides that "The driver of a vehicle approaching but not having entered an intersection * * * shall yield the right-of-way to a vehicle already within such intersection * * *." See Kennedy v. Smith, 226 N.C. 514, 39 S.E.2d 380; Crone v. Fisher, 223 N.C. 635, 27 S.E.2d 642; Yellow Cab Co. v. Sanders, 223 N.C. 626, 27 S.E.2d 631; Piner v. Richter, 202 N.C. 573, 163 S.E. 561. See also State v. Hill, 233 N.C. 61, 62 S.E.2d 532, where Ervin, J., succinctly states and explains the rules governing the rights and duties of motorists approaching and entering highway and street intersections.
The defendant urges that the plaintiff proved himself out of court on the theory of contributory negligence when he offered evidence tending to show that from a point 5 feet from the intersection, where he stopped before entering, he could see up the side street "almost a block" in the direction from which the defendant was approaching, and that he looked up the street but saw no car coming. From this, the defendant insists it is inferable that the plaintiff failed to see the obvious and is chargeable with contributory negligence as a matter of law for failure to observe the defendant's approach and yield the right-of-way to him, under the provisions of G.S. § 20-155(a), which direct that "[w]hen two vehicles approach or enter an intersection * * * at approximately *320 the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right * * *."
Here, the defendant's argument seems to be grounded on the assumption that this evidence conclusively shows the two cars approached the intersection at approximately the same time. Such does not appear. The evidence does not give the defendant's car any fixed location. The plaintiff said he looked and did not see the defendant's car. It is simply negative evidence. While this testimony may support the inference that the two cars approached the intersection "at approximately the same time," with equal logic it supports the inference that the defendant's car was at a point relatively remote from the intersection when the plaintiff looked. He said he could see up the street about a block. That the defendant was some considerable distance up the street when the plaintiff said he stopped and looked is supported by the physical evidence at the scene of the wreck tending to show that the defendant was driving at a high rate of speed; whereas the plaintiff said he moved through the intersection in second gear and was hit as he was emerging on the far side.
True, this phase of plaintiff's evidence tends to contradict other aspects of his evidence, particularly the testimony as to the defendant's admission that the plaintiff was first in the intersection,that defendant said he saw plaintiff in the intersection "but was coming so fast he could not stop." But, it is the rule in such cases that "[d]screpancies and contradictions, even in plaintiff's evidence, are for the twelve and not for the court." Brafford v. Cook, supra [232 N.C. 699, at page 701, 62 S.E.2d 327, 328]. See also Maddox v. Brown, 233 N.C. 519, 64 S.E.2d 864, and cases cited.
A single phase of the plaintiff's evidence tending to weaken or contradict other aspects of his evidence and tending to show negligence on his part may not be lifted out of context and construed so as to warrant sustaining a motion for nonsuit on the ground of contributory negligence when on the rest of the evidence, or upon a contextual interpretation of the whole of it, in the light most favorable to the plaintiff, the opposite inference that the plaintiff was free of contributory negligence is reasonably deducible therefrom. A motion for nonsuit on the ground of contributory negligence may be sustained when, and only when, no other reasonable inference is deducible from the plaintiff's evidence. Fowler v. Atlantic Co., Inc., supra; Maddox v. Brown, 232 N.C. 244, at page 249, 59 S.E.2d 791; Gladden v. Setzer, 230 N.C. 269, 52 S.E.2d 804; Thomas v. Thurston Motor Lines, 230 N.C. 122, 52 S.E.2d 377; Bundy v. Powell, supra, 229 N.C. 707, 51 S.E.2d 307.
The question of whether it was shown that the defendant's car was without headlights as alleged by the plaintiff, treated in the briefs and debated on the argument, does not seem to be of controlling importance one way or the other.
The plaintiff's evidence being susceptible of dual inferences on both the issue of negligence and that of contributory negligence, the case was properly submitted to the jury. The jury resolved the conflicting inferences in favor of the plaintiff in a trial in which we find
No error.