Court of Appeals of North Carolina, 1969

Choate Motor Co. v. Gray

Choate Motor Co. v. Gray
Court of Appeals of North Carolina · Decided August 13, 1969 · Beock, Campbell, Morris
5 N.C. App. 643; 169 S.E.2d 77; 1969 N.C. App. LEXIS 1415

Choate Motor Co. v. Gray

Opinion of the Court

Morris, J.

Defendant, on appeal, demurs ore tenus to plaintiff’s complaint contending that the complaint shows on its face plaintiff’s *645•contributory negligence as a matter of law. Defendant presents no argument in support of the demurrer. Upon demurrer, the allegations of the complaint will be taken as true and the complaint liberally construed in favor of plaintiff and unless the pleading is fatally defective or wholly insufficient, demurrer should not be sustained. 6 Strong, N.C. Index 2d, Pleadings, § 26, p. 348. While this complaint may not be a model of clarity, we think it sufficient to withstand demurrer. The demurrer is overruled.

Defendant earnestly contends that his motion for nonsuit, made at the close of plaintiff’s evidence and renewed at the close of all the evidence, should have been sustained and that the verdict of the jury was contrary to fact and applicable law.

On a motion to nonsuit, plaintiff’s evidence must be taken as true and must be considered in the light most favorable to plaintiff, giving him the benefit of every fact and inference of fact pertaining to the issues which may be reasonably deduced from the evidence. Perkins v. Cook, 272 N.C. 477, 158 S.E. 2d 584. When these well-known rules are applied to plaintiff’s evidence, it tends to show: On 1 December 1966, Murphy, an employee of plaintiff, was driving a 1962 Chevrolet in a westerly direction along N.C. Highway 18 about 4:30 in the afternoon. He was close to Edward Wright’s which is about a mile from the top of the mountain or Parkway and about 300 or 400 yards west of the road that goes up to the old Pack Murphy place. The road was crooked. There is a “pretty stiff curve.” The highway was about 20 feet in width and the weather was fair. He came around the curve “and this automobile was stopped in front of me.” He was flagging down a 1964 Ford station wagon. The station wagon came on by and Murphy “slid into” the rear of defendant’s car. The defendant’s car was on his right side of the road and completely on the hard surface. Murphy was traveling at a speed of about 45 miles per hour. When he first observed defendant’s car as he came around the curve it was about 100 feet away. Murphy was traveling about 15 miles per hour when he hit defendant’s car. His tires were good and they skidded. There were about 54 feet of skid marks from all four wheels of the Murphy vehicle. When the patrolman arrived, the vehicles were sitting about 150 or 200 feet from the curve. Defendant stated to the patrolman that he was traveling west on N.C. Highway 18, “looking for a fellow and met him there and that this fellow he wanted to see, he met him traveling in the other direction; and, consequently, he stopped or was attempting to stop to flag this fellow down.” The shoulder is a very narrow shoulder on the right and then a bank or fill.

*646In our view of the evidence, the jury could have found that plaintiff’s damage proximately resulted from the negligence of defendant and we think the motion to nonsuit was properly overruled.

No error.

Campbell and Beock, JJ., concur.

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