Toney Ex Rel. Toney v. Henderson

DenNy, J. The evidence adduced in the trial below, when considered in the light most favorable to the plaintiff, fails to show any negligence on the part of the defendants. The plaintiff apparently undertook to make a U-turn immediately after Mr. Eeid passed him and in doing so lost his balance, fell off his bicycle and landed in between the left front and rear wheels of defendants’ truck. The truck, according to the evidence, was being operated at a moderate rate of speed on its right side of the highway. ■ There was nothing between the plaintiff and the defendants’ truck to obstruct his view of the truck after it left the new Charlotte-Statesville Highway and entered the highway on which they were traveling, except Mr. Eeid’s car as it passed between them. And while the evidence does not disclose any act of negligence on the part of the defendants, even if it did so, the negligence of the plaintiff was sufficient to establish contributory negligence as a matter of law. Threalt v. Express Agency, 221 N. C., 211, 19 S. E. (2d), 873; Van Dylce v. Atlantic Greyhound Corp., 218 N. C., 283, 10 S. E. (2d), 727; Tart v. R. R., 202 N. C., 52, 161 S. E., 720. The plaintiff’s failure to see the approaching truck when he looked just before making his U-turn is not chargeable to the defendants. The presence of the truck on the highway at the time and place of the accident and the manner of its operation, negative the plaintiff’s allegation of excessive speed. There is no evidence of excessive speed disclosed by the record. Furthermore, the truck was stopped within 6 or 8 feet of the point where its left rear wheel came in contact with the plaintiff’s body. Sometimes physical facts speak louder than words. Powers v. Sternberg, 213 N. C., 41, 195 S. E., 88. The plaintiff’s injuries were serious and regrettable, but we think his own testimony exonerates the defendants from liability or blame in connection with this unfortunate accident. The judgment of the court below is Affirmed.