Hobbs v. . Drewer

Devin, J. The defendants’ appeal presents two principal questions: (1) "Were defendants entitled to the allowance of their motion for judgment of nonsuit or directed verdict, and (2) passing that, did the court *148 err in the instructions to the jury on the issue of contributory negligence, entitling defendants to a new trial? 1. It was urged by defendants that the plaintiff, being familiar with the road and observing on the bridge an approaching motor vehicle the width and type of which he did not know, and aware that his own bus was 7% feet wide, should have paused to permit the truck to emerge from the bridge before entering and attempting a passage with clearance so limited, and that his failure so to do was a proximate contributing cause of the injury to his bus. However, it will be noted that the width of the roadway on the bridge was one foot wider than the paved surface of the highway leading to the bridge, and hence, if plaintiff could proceed at all on the paved highway when meeting a motor vehicle, the question of ordinary prudence on his part would not be foreclosed by his admission that he continued to drive at moderate speed onto the bridge where the road was level and straight and the known clearance of the bridge seventeen feet, in the absence of anything to put him on notice that the width or other characteristic of the approaching vehicle was such as to import danger. Furthermore, according to plaintiff’s evidence, if each vehicle continued on its proper side of the roadway on the bridge, there was sufficient clearance for them to pass in safety, and he contends he had the right to assume that the oncoming vehicle would remain-on its right side of the road. Shirley v. Ayers, 201 N. C., 51, 158 S. E., 840; Cummins v. Fruit Co., 225 N. C., 625. Plaintiff testified he knew there was room to pass a truck eight feet wide (the maximum under Gr. S., 20-116), and that he did not know the approaching vehicle was a truck until just before he was struck. “I discovered it was a truck when I saw that red body (of the truck) coming into me. I did not have time to put on my brakes.” Under these circumstances, and considering the evidence for the purpose of this motion in the light most favorable for the plaintiff, we are unable to say that as a matter of law contributory negligence was made conclusively to appear. It was said in Atkins v. Transportation Co., 224 N. C., 688, 32 S. E. (2d), 209 : “A judgment of involuntary nonsuit on the grounds of contributory negligence will not be sustained or directed unless the evidence is so clear on that issue that no other conclusion seems permissible.” See also Cole v. Koonce, 214 N. C., 188, 198 S. E., 637, and Manheim v. Taxi Corp., 214 N. C., 689, 200 S. E., 382. “As the burden of proof upon the issue of contributory negligence was upon defendants, it is the settled rule in this jurisdiction that judgment of nonsuit on this ground can be rendered only when a single inference, leading to that conclusion, can be drawn from the evidence.” Hampton v. Hawkins, 219 N. C., 205, 13 S. E. (2d), 227; Hayes v. Tel. Co., 211 N. C., 192, 189 S. E., 499. On this motion the evidence is to be consid *149 ered in accord with the rule stated in Harrison v. R. R., 194 N. C., 656, 140 S. E., 598, and Gregory v. Ins. Co., 223 N. C., 124, 25 S. E. (2d), 398. We tbink it was a matter for tbe jury, and that tbe ruling of tbe court in this respect should be upheld. 2. Tbe defendants assign error in tbe following instruction to tbe jury on tbe issue of contributory negligence: “Tbe burden of that issue (tbe second) is on the defendant(s). Before you can answer that issue yes, which means that you find Milton Hobbs is guilty of contributory negligence, as I have explained contributory negligence to be, tbe defendant^) must have offered evidence which satisfies you from the evidence and by its greater weight that Milton Hobbs was guilty of contributory negligence. If you are so satisfied you would answer tbe second issue yes: if you are not so satisfied you would answer it no.” Tbe defendants insist that tbe trial judge unwittingly restricted their defense on this issue by instructing tbe jury that before they could find the plaintiff chargeable with contributory negligence the defendants must have offered evidence which should satisfy them of this fact, and that tbe jury was thereby precluded from considering plaintiff’s admissions, and the evidence of plaintiff’s witnesses, as well as that elicited on cross-examination, as bearing on this question. On the record before us this is the only instruction given the jury on .this issue. We find nothing to counteract or explain or cure the prejudicial effect of the language used. We are constrained to hold there was error in this instruction. Conley v. Pearce-Young-Angel Co., 224 N. C., 211; S. v. Ellerbe, 223 N. C., 770, 28 S. E. (2d), 519. It is unnecessary to consider tbe other exceptions brought forward in tbe assignments of error as they may not arise on another bearing. For the error pointed out there must be a New trial.