Threatt Ex Rel. Threatt v. Railway Express Agency, Inc.

Stacy, C. J. The question before us is the sufficiency of the evidence to carry the ease to the jury. The record suggests that the demurrer to the evidence should be sustained, if not upon the principal issue of liability, then upon the ground of contributory negligence. Swainey v. Tea Co., 202 N. C., 272, 162 S. E., 557; Miller v. Holland, 196 N. C., *213 739, 147 S. E., 8. Cf. Wooten v. Smith, 215 N. C., 48, 200 S. E., 921; Hood v. Bottling Co., 192 N. C., 827, 135 S. E., 609. Both the driver •of the truck and the plaintiff were charged with the mutual and reciprocal duty to exercise reasonable care under the circumstances arising from the exigencies of traffic in the street. Moore v. R. R., 201 N. C., 26, 158 S. E., 556. The allegation of negligence is, that the defendant drove its truck too near the plaintiff as he was standing in the street waiting for the traffic to pass or for the light to turn. The evidence could hardly be said to support the allegation. The defendant negatives any negligence, and the plaintiff makes out a case of contributory negligence. Van Dyke 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 says the truck was moving “slowly, very slowly.” He must have known, then, that he was close, very close, to it. But whether the truck was standing still or moving slowly when plaintiff came into the street with his bicycle, the jury was left to speculate on whether the driver of the truck could see the precarious position of the plaintiff before the rear wheel struck him. Rountree v. Fountain, 203 N. C., 381, 166 S. E., 329. Without this, the case must fail. Mills v. Moore, 219 N. C., 25, 12 S. E. (2d), 661. It is not enough that the driver of the truck saw the plaintiff in the street. He must have appreciated the danger in time to have avoided the injury in the exercise of reasonable prevision. Wellons v. Sherrin, 219 N. C., 476, 14 S. E. (2d), 426. Negligence is doing other than, or failing to do, what a reasonably prudent person, similarly situated, would have done. Cole v. R. R., 211 N. C., 591, 191 S. E., 353; Diamond v. Service Stores, 211 N. C., 632, 191 S. E., 358. A careful perusal of the record engenders the conclusion that it is insufficient to support a recovery. The motion for judgment as in case of nonsuit should have been allowed. C. S., 567. Reversed.