Killough v. . Williams

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. *255 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.