McNeely v. SOUTHERN RAILWAY COMPANY

MORRIS, Judge. The sole question for consideration is the propriety of the trial judge’s allowing defendant’s motion to dismiss under G.S. 1A-1, Rule 41(b). Appellant states in his brief that he presented ample evidence for his case to go to the fury. This case was, however, tried without a jury. Since the enactment of the new Rules of Civil Procedure in 1970, this Court has repeatedly distinguished between the motion for directed verdict under Rule 50 and the motion for involuntary dismissal under Rule 41(b). The former is proper when the case is tried before a jury, and the latter is appropriate where the court sits as trier of fact. Bryant v. Kelly, 10 N.C. App. 208, 178 S.E. 2d 113 (1970), rev’d on other grounds 279 N.C. 123, 181 S.E. 2d 438 (1971); Neff v. Coach Co., 16 N.C. App. 466, 192 S.E. 2d 587 (1972). In determining the sufficiency of the evidence when ruling on a motion to dismiss made under Rule 41(b), it is the function of the trial judge “ ‘to evalute the evidence without *505 any limitations as to the inferences which the court must indulge in favor of the plaintiff’s evidence on a similar motion for a directed verdict in a jury case.’ Wells v. Insurance Co., 10 N.C. App. 584, 179 S.E. 2d 806 (1971); Rogers v. City of Asheville, 14 N.C. App. 514, 188 S.E. 2d 656 (1972).” Lineberry v. Country Club, 16 N.C. App. 600, 603, 192 S.E. 2d 853 (1972), quoting Parker, Judge, in Bryant v. Kelly, supra. “In a ruling on a motion to dismiss under Rule 41(b), applicable only ‘in an action tried by a court without a jury,’ the court must pass upon whether the evidence is sufficient as a matter of law to permit a recovery; and, if so, must pass upon the weight and credibility of the evidence upon which the plaintiff must rely in order to recover.” Knitting, Inc. v. Yarn Co., 11 N.C. App. 162, 163, 180 S.E. 2d 611 (1971), quoting Bryant v. Kelly, supra. If the trial judge allows the motion, “the court, as the trier of fact, should determine the facts and render judgment against the plaintiff.” Wells v. Insurance Co., supra, at 588. The facts found by the trial court are conclusive if supported by competent evidence, even though there may be evidence to support findings to the contrary. Bryant v. Kelly, supra. We hold that the facts found by the court are supported by competent evidence. The only question before us now is whether the findings of fact support the conclusions of law and the judgment. Id. It is our duty then to determine whether Judge Collier’s findings of fact support his conclusion that plaintiff’s evidence falls short of showing any actionable negligence on defendant’s part and that plaintiff as a matter of law is not entitled to recovery. We hold that they do. We feel that allowing the motion to dismiss was proper under the holding of Owens v. R.R., 258 N.C. 92, 128 S.E. 2d 4 (1962). While Owens was decided under the former compulsory nonsuit practice, the facts of that case were very similar to those of the case before us, and under the holding of Wells v. Insurance Co., supra, we are permitted to evaluate the sufficiency of the evidence by the same standard. In Owens, the plaintiff’s evidence tended to show that he was driving 25 miles per hour on a rainy and foggy night. As he approached the railroad crossing, there were no street *506 lights, no whistle or signal, and no flagman. When plaintiff first saw the train, he was one to one and one-half car lengths from the train. However, plaintiff was familiar with the crossing, for he was in the habit of crossing it about twice a month. The Court held that plaintiff’s evidence taken in the light most favorable to him, disclosed that his driving under the above conditions constituted “active negligence on the part of the driver of the automobile, the male plaintiff, operating subsequent to any negligence on the part of the defendant, and such negligence of the male plaintiff was the real, efficient and sole proximate cause of the injuries to himself and the damage to his automobile and of his wife’s injuries.” Id. at 95. The Court further held that since the plaintiff’s evidence disclosed plaintiff’s own negligence, it was insufficient under well-established nonsuit practice to make out a case for the jury. Although there was no jury in the case sub judice, we feel that the case is controlled by Owens, supra. Plaintiff’s evidence has disclosed contributory negligence and he has, therefore, failed to establish his right to relief. We are aware of the holding of the Supreme Court in Jernigan v. R.R. Co., 275 N.C. 277, 167 S.E. 2d 269 (1969), where Justice Higgins stated that the plaintiff in Owens was nonsuited not because of contributory negligence but rather because he failed to show the negligence of the defendant. The Owens case was not cited as authority in the Jernigan case, nor was it necessary to the decision. But aside from both cases, the dismissal should be affirmed. Regardless of whether plaintiff’s evidence is evaluated as failing to establish defendant’s negligence or as establishing contributory negligence, it fails to establish his right to relief. The judgment allowing the motion to dismiss plaintiff’s case under Rule 41(b) is, therefore, Affirmed. Judges Britt and Parker concur.