Killough v. Williams, 224 N.C. 254 (1944)

April 19, 1944 · Supreme Court of North Carolina

224 N.C. 254

W. J. KILLOUGH v. FRANK WILLIAMS and BERNICE LOCKAMY.

(Filed 19 April, 1944.)

Negligence § 19a—

In an action to recover damages for injuries to plaintiff caused by-alleged negligence of defendant, where plaintiff’s evidence tended to show that he was driving his automobile just after dark, on a paved highway, following about forty feet in the rear of defendants’ truck, at about 35-miles per hour, when defendant pulled to the right, off the shoulder of the road, apparently as if to stop, then suddenly, without signal or warning, drove the truck to the left across the road immediately in front of plaintiff’s car, leaving neither time nor space to avoid the collision from which the damage resulted, motion for judgment as of nonsuit was erroneously granted, as contributory negligence on the part of plaintiff does not conclusively appear from his evidence.

Appeal by plaintiff from Stevens, J., at February Term, 1944, of Wake.

Reversed.

Action for damages for personal injury alleged to have been caused by tbe negligence of tbe defendants in tbe operation of a motor truck. At tbe conclusion of tbe plaintiff’s evidence motion for judgment of nonsuit was allowed, and plaintiff appealed.

Thomas W. Ruffin for plaintiff, appellant.

Smith, Leach ■& Anderson and P. D. Herring for defendants, appellees-

DeviN, J".

Tbe plaintiff’s appeal brings up for review tbe ruling of' tbe trial court that tbe evidence offered was insufficient to warrant submission of tbe ease to tbe jury. In order to determine tbe correctness of tbis ruling tbe evidence must be considered in tbe light most favorable for tbe plaintiff.

From tbe evidence introduced on tbe trial it was made to appear tbat on tbe occasion alleged, just after dark, plaintiff was driving bis automobile on a paved highway following defendants’ truck. Defendants’ truck pulled to tbe right, off on the shoulder of the road, apparently as if about to stop, the plaintiff being about 40 feet to the rear and driving about 35 miles per hour. Then suddenly, without signal or warning, defendants’ truck was driven to the left across the highway immediately in front of plaintiff’s automobile, leaving him neither time nor space within which to avoid a collision. Plaintiff sustained substantial injury.

Obviously there was evidence of negligence on the part of defendants, but it is insisted by appellees that according to pláintiff’s own testimony he was guilty of contributory negligence in following too closely in the rear of the truck. G. S., 20-152; Allen v. Boltling Co., 223 N. C., 118. However, we do not think contributory negligence on the part of the plaintiff conclusively appears from his evidence. Hence he was entitled to have his case submitted to the jury. Hampton v. Hawkins, 219 N. C., 205, 13 S. E. (2d), 227; Smith v. Coach Co., 214 N. C., 314, 199 S. E., 90; Cole v. Koonce, 214 N. C., 188, 198 S. E., 637; Hayes v. Tel. Co., 211 N. C., 192, 189 S. E., 499; Murphy v. Coach Co., 200 N. C., 92, 156 S. E., 550.

The judgment of nonsuit was improvidently entered and must be

Reversed.