Hensley Ex Rel. Hensley v. Briggs

DeviN, J. Without undertaking to discuss in detail the evidence here-inbefore summarized, or to express opinion as to its weight, we think the plaintiff’s evidence, considered in the light most favorable for him, was sufficient to carry the case to the jury, and that the judgment of nonsuit was improvidently entered. According to plaintiff’s view he was at the time of his injury a guest passenger on Banks’ bicycle, without power to control its movement, and hence negligence on Banks’ part, if any, would not be imputable to him, and he would not be barred of recovery for defendant’s negligence unless the negligence of Banks were the sole and only proximate cause of the injury. Mason v. Johnston, 215 N.C. 95, 1 S.E. 2d, 379; Gaffney v. Phelps, 207 N.C. 553, 178 S.E. 231; Newman v. Coach Co., 205 N.C. 26, 169 S.E. 808; Gaines v. Campbell, 166 S.E. (Va.) 704; Johnson v. Shattuck, 125 Conn. 60; 172 A.L.R. 736. Defendant suggests that plaintiff’s case is bottomed on the principle of last clear chance, and that he has not pleaded it. Bailey v. R. R., 223 N.C. 244, 25 S.E. 2d 833; Redmon v. R. R., 195 N.C. 764, 143 S.E. 829; Hudson v. R. R., 190 N.C. 116, 129 S.E. 146. But we note it is alleged in the complaint that defendant saw or by the exercise of reasonable care could have seen the boys on the bicycle and could have by the exercise of reasonable care avoided *116 the collision, and that defendant neglected and failed to take any precaution whatever to avoid the collision. Furthermore, according to plaintiffs evidence, if he was being transported as a guest passenger and not amenable to the charge of contributory negligence, he would not be under necessity of invoking the principle of last clear chance. However, these are matters which, if they arise on another hearing, will be more accurately presented and determined when all the evidence has been heard. Judgment of nonsuit is Reversed.