McMillan v. . Butler

Stacy, C. J. The defendant feckfully contends that the plaintiff contributed to his own injury by driving in front of an on-coming car without keeping a proper lookout or without heeding what a proper lookout would have disclosed, and that recovery should be denied on the ground of plaintiff’s contributory negligence. Tart v. R. R., 202 N. C., 52, 161 S. E., 720. Conceding that both drivers may have been negligent, we think the question of proximate cause, and hence the issue of ultimate liability, was for the jury. Lincoln v. R. R., 207 N. C., 787, 178 S. E., 601; Oldham v. R. R., 210 N. C., 642, 188 S. E., 106; Boykin v. R. R., 211 N. C., 113, 189 S. E., 177. The rule is, that when more than one legitimate inference can be drawn from the evidence, the question of proximate cause is for the twelve. Wadsworth v. Trucking Co., 203 N. C., 730, 166 S. E., 898. The defendant also assigns as error the failure of the court to instruct the jury “that regardless of whether the plaintiff actually saw the defendant’s approaching car, he would be guilty of contributory negligence if he had a clear and unobstructed view of the highway for a distance of from 240 to 295 yards and could have seen the defendant in time to have avoided the collision if he had been keeping a proper lookout.” *584 Conceding tbe appropriateness of such an instruction on tbe record as it appears, we think tbe court fairly met tbe issue when be recalled tbe jury and gave tbe following special instruction: “It was tbe duty of tbe plaintiff, before attempting to cross tbe highway, to keep a proper lookout for cars approaching on tbe bigbway; and, if tbe jury shall find from tbe greater weight of tbe evidence that tbe plaintiff failed to keep a proper lookout and that bis failure to keep a proper lookout was a proximate cause of tbe injury to bis automobile, then tbe plaintiff would be guilty of contributory negligence, and be would not be entitled to recover any damages from tbe defendant.” Thus, it appears tbe trial court dealt with tbe situation in tbe very language of tbe defendant’s prayer. Of course, hindsight is usually better than foresight, and tbe defendant now prefers a slightly different instruction, but tbe charge as given was all that was requested at tbe time, and it seems adequate. A careful perusal of tbe entire record leaves us with tbe impression that tbe ease has been tried in substantial conformity to tbe decisions on tbe subject and that tbe verdict and judgment should be upheld. It is so ordered. No error.