Warren v. Lewis

160 S.E.2d 305 (1968) 273 N.C. 457 Robert WARREN v. Freal M. LEWIS. No. 449. Supreme Court of North Carolina. April 10, 1968. *306 Randolph & Drum, by Clyde C. Randolph, Jr., Winston-Salem, for plaintiff appellant. Harold R. Wilson and Wesley Bailey, by Wesley Bailey, Winston-Salem, for defendant appellee. HIGGINS, Justice: The plaintiff's evidence was sufficient to go to the jury on the issue of the *307 defendant's negligence. Consequently, the judgment of nonsuit may be sustained only if the plaintiff's evidence discloses his contributory negligence as a matter of law. Contributory negligence is an affirmative defense which must be pleaded and established by proof. Ordinarily, the issue is one of fact to be decided by the jury. However, when the plaintiff's own evidence so clearly establishes the defendant's plea of contributory negligence that no reasonable inference to the contrary may be drawn from that evidence, the court, in the absence of a last clear chance issue, is required to grant defendant's motion for nonsuit. Rouse v. Snead, 271 N.C. 565, 157 S.E.2d 124. Justice Lake, in Douglas v. W. C. Mallison & Son, 265 N.C. 362, 144 S.E.2d 138, has accurately and concisely stated the rule governing nonsuit on the ground of plaintiff's contributory negligence. "A judgment of nonsuit on the ground of contributory negligence may be entered only when the plaintiff's evidence, considered alone and taken in the light most favorable to him, so clearly establishes the defense that no other reasonable inference or conclusion can be drawn therefrom. Cowan v. Murrows Transfer Co., 262 N.C. 550, 138 S.E.2d 228; Waters v. Harris, 250 N.C. 701, 110 S.E.2d 283; Strong, N. C. Index, Negligence, § 26. For such a ruling to be proper, it is also necessary that the answer has alleged the negligent act or omission on the part of the plaintiff which is so shown by the evidence. Maynor v. Pressley, 256 N.C. 483, 124 S.E.2d 162; Rodgers v. Thompson, 256 N.C. 265, 123 S.E.2d 785; Messick v. Turnage, 240 N.C. 625, 83 S.E.2d 654; Hunt v. Wooten, 238 N.C. 42, 76 S.E.2d 326; G.S. 1-139." In the case at bar, the plaintiff's evidence paints this picture: The plaintiff had a limited operator's license which required him to wear glasses. He had been convicted in court for five traffic violations. These incidents may help to explain plaintiff's failure to see and appreciate the danger confronting him as he entered the main highway. His view from the intersection to his right was unobstructed to the top of a hill 400 to 600 feet west of the intersection. An automobile could be seen an additional 50 feet beyond the crest. In clear weather, and in broad daylight, he entered the main highway, without discovering the vehicle approaching from the west. The physical evidence indicated the plaintiff had moved only a distance of approximately 16 feet—6 to and 10 across the north land before the collision. The record fails to disclose any other vehicles upon the highway. The plaintiff testified he never saw the defendant's Dodge before this "* * * his third wreck". The law required the plaintiff to remain in the private road until he ascertained, by proper lookout, that he could enter the main highway in safety to himself and to others on the highway. G.S. § 20-158; Raper v. Byrum, 265 N.C. 269, 144 S. E.2d 38; Howard v. Melvin, 262 N.C. 569, 138 S.E.2d 238. By admitting he entered without seeing the defendant's approach from the west, he negligently failed to see a danger, to himself and to the defendant, which was or should have been obvious to him. Not once did he see the defendant's Dodge until after the actual collision. The law imposes upon a person sui juris the duty to use due care to protect himself from injury. The degree of such care should be commensurate with the danger to be avoided. Rosser v. Smith, 260 N.C. 647, 133 S.E.2d 499; Basnight v. Wilson, 245 N.C. 548, 96 S.E.2d 699; Tyson v. Ford, 228 N.C. 778, 47 S.E.2d 251; Strong, N. C. Index, Negligence, § 11. The conclusion is inescapable that the plaintiff failed to look, or failed to see the approach of the defendant's automobile, which had the right of way. This right of way the plaintiff's negligent movement occluded. The judgment of nonsuit on the ground of contributory negligence is Affirmed. *308 BOBBITT, Justice (concurring). On cross-examination, plaintiff testified, without objection, he had been previously convicted of five charges of traffic violations. If objections had been interposed, this testimony would have been admissible for the purpose of impeachment, Ingle v. Ray Stone Transfer Corp., 271 N.C. 276, 156 S.E.2d 265, and cases cited, but it would not have been admissible as substantive evidence, Mason v. Gilliken, 256 N.C. 527, 532, 124 S.E.2d 537, 540, and cases cited. Since the opinion of the Court treats the testimony relating to plaintiff's convictions for unrelated traffic violations as substantive evidence, I deem it appropriate to emphasize that this testimony was admitted without objection. Independent of the testimony relating to plaintiff's convictions for unrelated traffic violations, I concur in the view that plaintiff's evidence discloses contributory negligence as a matter of law. SHARP, J., joins in this opinion.