Wilson v. J. W. Dunn Co.
Wilson v. J. W. Dunn Co.
Opinion of the Court
Defendant in its brief and argument on this appeal has apparently conceded, and we agree, that there was sufficient evidence of negligence on the part of the driver of defendant’s dump truck to take that issue to the jury. Defendant contends, however, that its motion for nonsuit should have been allowed on the grounds that the plaintiff, Connie Marie Wilson, was guilty of contributory negligence as a matter of law and this contention is the sole question presented by this appeal.
In considering a similar question in the recent case of Anderson v. Carter, 272 N.C. 426, 429, (1968), the North Carolina Supreme Court said: “It is elementary that upon a motion for judgment of nonsuit the evidence of the plaintiff must be taken to be true and must be considered in the light most favorable to him, resolving all contradictions therein in his favor, and giving him the benefit of every inference in his favor which can reasonably be drawn from it. Strong, N. C. Index, Trial, § 21. Obviously, the evidence of the plaintiff, so construed, is ample to support a finding of actionable negligence by the defendant. A judgment of nonsuit on the ground of the plaintiff’s contributory negligence can be granted only when the plaintiff’s evidence, considered in accordance with the above rule, so clearly establishes his own negligence as one of the proximate causes of his injury that no other reasonable inference or conclusion can be drawn therefrom. Black v. Wilkinson, 269 N.C. 689, 153 S.E. 2d 333; Pruett v. Inman, 252 N.C. 520, 114 S.E. 2d 360; Bondurant v. Mastín, 252 N.C. 190, 113 S.E. 2d 292.”
Considering the evidence of the plaintiffs in the light of the foregoing rules, plaintiffs’ evidence tended to show: That on the afternoon of 26 August 1966, Connie Marie Wilson, a sixteen year old girl, was driving her father’s Volkswagen in a northerly direction on N. C. Highway 150 on a trip with a young girl companion from her home in Lexington to Winston-Salem. At the point where the collision occurred, N. C. Highway 150 is intersected and crossed by a rural paved road, which constitutes one continuous road but is given two numbers, RPR 3011 being the number given to designate the rural paved road as it runs into the intersection from the west and RPR 1508 being the number given to the rural paved road as it runs into the intersection from the east. At the intersection N. C. 150 is a four-lane, paved highway with two lanes of traffic for northbound
At approximately 2:15 p.m., in the afternoon of 26 August 1966, Connie Marie Wilson drove her father’s Volkswagen in a northerly direction on Highway 150 toward the intersection and at a speed of approximately 40 miles per hour. There is a slight hill approximately 480 feet south of the intersection and as the Volkswagen passed this hill and continued to approach the intersection, Connie Marie Wilson took her foot off of the accelerator and slowed the Volkswagen to approximately 30 miles per hour. When she was approximately 200 feet from the intersection, she observed the defendant’s dump truck on her left, on RPR 3011 at or around the stop sign. The truck did not stop but continued to move at approximately ten to twelve miles per hour as it entered into the intersection and crossed the dual lanes for southbound traffic on Highway 150. As it entered the crossover in the median, the truck slowed down even more. When the Volkswagen was approximately 50 feet from the intersection, the truck speeded up and crossed into the northbound lanes of traffic on Highway 150 directly in front of the Volkswagen. At this point, the Volkswagen was traveling approximately 30 miles per hour and Connie Marie Wilson put her foot on the brakes, but did not have time to' apply them' effectively to slow or stop the Volkswagen be
On the foregoing evidence it is the contention of the defendant that the plaintiff, Connie Marie Wilson, was guilty of contributory negligence as a matter of law. We do not agree. Since the burden of proof on the issue of contributory negligence is upon the defendant, a motion for judgment of involuntary nonsuit upon that ground should be allowed only when the evidence of the plaintiffs, considered alone and taken in the light most favorable to them, together with all inferences favorable to them which may reasonably be drawn therefrom, so clearly establishes the defense that no other conclusion can reasonably be drawn. Raper v. Byrum, 265 N.C. 269, 144 S.E. 2d 38 (1965), and cases there cited.
Defendant contends that the intersection in question was in law but a single intersection, since at the point of intersection the median strip is less than 30 feet in width, and therefore the definition set forth in G.S. 20-38(12) which states that where a highway includes two roadways 30 feet or more apart, then each crossing of each roadway of such divided highway by an intersecting highway shall be regarded as a separate intersection, does not apply in this case. We do not find it necessary to pass upon this contention of the defendant, though we point out that at a point 255 feet south of the intersection, and again at a point 100 feet north of the intersection, the northbound and southbound roadways of Highway 150 are more than 30 feet apart, and that the median strip narrows as the intersection is approached only in order to permit more room for left-turn lanes of traffic. Therefore we think it entirely possible that this is the type of intersection which the legislature intended by G.S. 20-38(12) to be treated as two separate intersections. However, accepting for present purposes the defendant’s contention to be correct that this constituted in law but a single intersection, we still cannot agree that the evidence of the plaintiffs so clearly establishes that Connie Marie Wilson was guilty of contributory negligence that no other conclusion can reasonably be drawn.
Defendant’s contention is that Connie Marie Wilson first observed the truck as it was entering the intersection and at a time when she was approximately 200 feet away, and that in the exercise of such care as an ordinarily prudent person would take to avoid a collision with the truck, she had ample time to apply her brakes and to slow her Volkswagen or to change its course sufficiently
We grant that a very cautious or a very skillful driver, when faced with the situation which Connie Marie Wilson confronted, might have successfully taken action to avoid the collision. We grant that the evidence was sufficient to take to the jury the issue of whether or not she did in fact exercise such care to avoid the collision as an ordinarily prudent person would have exercised under the circumstances. But we do not agree that the evidence so clearly establishes the fact of her negligence as to require that this be found as a matter of law. She was traveling at 30 miles per hour, well within the lawful limit. At this speed her vehicle was moving 44 feet per second. She saw the truck slow down as it entered into the median. We do not think that an ordinarily prudent person in her situation must have anticipated, or was under a positive legal duty to anticipate, that the truck would continue across in front of her line of traffic. Not until she was about five car lengths away or approximately 50 feet from the intersection did she see the truck suddenly speed up as is passed through the median and move across directly into her path in the northbound lane of Highway 150. She then had only slightly more than one second in which to apply her brakes and slow or change the course of her vehicle. We do not think that her failure to do so establishes contributory negligence as a matter of law.
That she drove into the right-hand rear wheel of the truck, instead of attempting to drive in front or behind the truck, may have under the circumstances been her safest course. She testified that she thought it was, stating in response to a question of defendant’s counsel as to whether or not she more or less intended to hit the truck’s right rear wheel: “Yes, it was the safest thing I could think of then because if I went either way, I would have gone under the truck and cut the top of the car off and my head.” She further testified: “When I saw he went ahead and speeded up and tried to
Affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.