Austin v. . Overton

Stacy, C. J. Conceding that under Holland v. Strader, 216 N. C., 436, 5 S. E. (2d), 311, there may be some evidence of the defendant’s negligence, though stressfully controverted by the defendant, still it would seem that plaintiff’s own negligence was the proximate cause of his injury, or one of them. Tarrant v. Bottling Co., 221 N. C., 390; Sibbiti v. Transit Co., 220 N. C., 702, 18 S. E. (2d), 203; Beck v. Hooks, 218 N. C., 105, 10 S. E. (2d), 608. The plaintiff thus proves himself out of court. Godwin v. R. R., 220 N. C., 281, 17 S. E. (2d), 137. It need not appear that his negligence was the sole proximate cause of the injury, as this would exclude any idea of negligence on the part of the defendant. Absher v. Baleigh, 211 N. C., 567, 190 S. E., 897. It is enough if it contribute to the injury. Wright v. Grocery Co., 210 N. C., 462, 187 S. E., 564. The very term “contributory negligence” ex vi termini implies that it need not be the sole cause of the injury. Fulcher v. Lumber Co., 191 N. C., 408, 132 S. E., 9. The plaintiff may not recover, in an action like the present, when his negligence concurs with the negligence of the defendant in proximately producing the injury. Construction Co. v. R. R., 184 N. C., 179, 113 S. E., 672. Plaintiff’s evidence is to the effect that “no lights showed on the rear” of defendant’s car. This, then, put him on notice that he could not rely upon these lights. Miller v. R. R., 220 N. C., 562, 18 S. E. (2d), 232. He followed the defendant’s car for some distance before the collision. He further says that as a part of the res gestee, the defendant remarked, “it was my fault.” Even so, the conclusion is a legal one, determinable alone by the facts. It is not supposed the defendant intended by this statement — which he denies making — to concede more than his own negligence. The physical facts speak louder than the witness. Dillon v. Winston-Salem, 221 N. C., 512. The conclusion is inescapable that plaintiff’s negligence contributed to the injury. Pierce v. Seymour, decided herewith, ante, 42; Powers v. Sternberg, 213 N. C., 41, 195 S. E., 88; Davis v. Jeffreys, 197 N. C., 712, 150 S. E., 488. Hence, the judgment of nonsuit will be upheld. Affirmed.