Proctor v. Weyerhaeuser Co.
Proctor v. Weyerhaeuser Co.
Opinion of the Court
Defendant assigns as error the failure of the trial court to grant its motions for directed verdict and judgment notwithstanding the verdict, and portions of the court’s instructions to the jury.
By its first assignment of error defendant contends that plaintiff was contributorily negligent as a matter of law. In Simmons v. Williams, 20 N.C. App. 402, 404, 201 S.E. 2d 561, 562-568 (1974), we find: “As to contributory negligence of the plaintiff as a matter of law, a verdict may be directed on the. basis of contributory negligence ‘only when the plaintiff’s evidence ... 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.’ Anderson v. Carter, 272 N.C. 426, 429, 158 S.E. 2d 607, 609; accord, Bowen v. Gardner, 275 N.C. 363, 168 S.E. 2d 47; Miller v. Enzor, 17 N.C. App. 510, 195 S.E. 2d 86, cert. denied, 283 N.C. 393, 196 S.E. 2d 276. In determining whether a directed verdict should be granted, the evidence must be viewed in the light most favorable to plaintiff. Bowen v. Gardner, supra; Homes, Inc. v. Bryson, 273 N.C. 84, 159 S.E. 2d 329. Contradictions and inconsistencies in plaintiff’s evidence must be resolved in his favor. Bowen v. Gardner, supra; Waycaster v. Sparks, 267 N.C. 87, 147 S.E. 2d 535; Carter v. Murray, 7 N.C. App. 171, 171 S.E. 2d 810.” So viewed, the evidence tends to show:
On 27 January 1969, plaintiff was engaged in the logging business, selling his logs to defendant. On the morning of that day, plaintiff’s son loaded twenty to twenty-two logs in pyramid fashion onto a specially designed ten-wheel Chevrolet truck. The logs were loaded on bolsters on top of the chassis. These bolsters were six inches high with a two-inch thick piece of oak
At this point a Mr. Wrightson approached plaintiff and asked him to measure some of the logs on the truck. This they did on the left-hand side of the truck. As plaintiff finished measuring the logs, Jasper Taylor, employee of defendant, turned his Pettibone unloader from the job he had just completed to plaintiff’s truck so that plaintiff had to run out of his way. Plaintiff, in so doing, threw up his hand and said, “Stop.” The machine did stop about eighteen inches from the truck.
Plaintiff, then on the left-hand side, walked around the truck, released the binder of the remaining front chain, threw the free end over and started pulling the chain under the logs and gathering it. At this point, Taylor activated the’unloader, ramming the forks of the machine under the logs causing the uppermost logs to fall off the truck and strike plaintiff.
The evidence does not compel the conclusion that plaintiff was negligent, therefore, this assignment of error is overruled.
Defendant’s second assignment to various parts of the charge, contains three contentions. The first two clearly are without merit. Defendant’s third contention is that the court erred in refusing to give a requested instruction to the effect that plaintiff could not recover for future consequences of his injury. This contention is based upon the lack of any medical testimony that plaintiff was under any continuing disability. This is true and,- in fact, there is no evidence of a continuing disability. The trial court correctly instructed upon recovery for loss of earnings or loss of capacity to earn,-fair and reasonable value-of
No error.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.