Crone v. . Fisher

ScheNCK, J. Both in their oral argument and in their brief filed with the Court the defendants, appellants, present but one question, namely, did the court err in disallowing their motion for judgment as in case of nonsuit and to dismiss the action lodged when the plaintiff had introduced her evidence and rested her case and renewed at the close of all the evidence? C. S., 567. The charge to the jury is not brought forward in the record and it must therefore he presumed that the court correctly declared and explained the law applicable to the evidence. Boswell v. Town of Tabor, 196 N. C., 145, 144 S. E., 701; Lumber Co. v. Power Co., 206 N. C., 515, 174 S. E., 427; Jernigan v. Jernigan, 207 N. C., 831, 178 S. E., 587. The appellants’ failure to present the argument that there was insufficient evidence to be submitted to the jury of actionable negligence on the part of the defendants is tantamount to. an admission of the existence of sufficient evidence to carry the case to the jury on that issue. Hence, the question is narrowed to the single inquiry: "Was the plaintiff, according to her own evidence, guilty of contributory negligence ? Construed in the light most favorable to the plaintiff, as it must be upon a demurrer to the evidence, her testimony as well as her other evidence tends to show that the plaintiff was driving her automobile at a speed between 20 and 25 miles per hour, in a southern direction on Filmore Street, approaching the intersection of said street with Jefferson Street, which ran east and west; before reaching the intersection she looked west up Jefferson Street and saw defendants’ truck approaching it; the defendants’ truck was 125 feet or more west of the intersection when plaintiff entered it; plaintiff’s automobile reached within four feet of the curb on the opposite, the southern, side of Jefferson Street when it was struck by the defendants’ truck running at 45 miles per hour, and knocked out of control of the driver, the plaintiff, and precipitated 70 feet into a stone wall on the east side of Filmore Street; the plaintiff’s *637 car reached the intersection of the two streets when the defendants’ truck was 125 feet therefrom. “Taking the evidence in the light most favorable to the plaintiff, the issue is one for the jury. Factual adjustments and appraisals are required, the making of which belonged exclusively to them.” Seawell, J., in Groome v. Davis, 215 N. C., 510, 2 S. E. (2d), 771. Defendants contend that the plaintiff was negligent in that she violated the provisions of C. S., 2621 (302), by failing to yield the right of way to defendants’ truck since said truck was on her right and was therefore entitled to the right of way in the intersection. The defendants fail to take into consideration that the statute upon which they rely provides that the driver of the vehicle on the left shall yield the right of way to the vehicle on the right “when two vehicles approach or enter an intersection and/or junction at approximately the same time.” It cannot be held as a matter of law that the plaintiff’s automobile and the defendants’ truck approached or entered the intersection “at approximately the same time,”' when the latter was 125 feet away from the intersection when the former was entering it, and when the plaintiff’s automobile had crossed within four feet of the opposite curb when the defendants’ truck collided therewith. Defendants further contend that the plaintiff was negligent in that she violated section 38 of the Code of Ealeigh, North Carolina, by driving her automobile more than twenty miles per hour through a street intersection. This contention is untenable for the reason that the ordinance invoked provides that “where no special hazard exists, the following speeds shall be lawful, but any speed in excess of said limits shall be prima facie evidence that the speed is not reasonable or prudent and is unlawful: ... é. Twenty miles per hour through street intersections.” Therefore, conceding that the plaintiff entered the intersection at a greater rate of speed than 20 miles per hour, this would only be prima facie evidence of her negligence, and not negligence per se, and could not be held as a matter of law to constitute contributory negligence that would bar the plaintiff’s recovery. Barnhill, J., in Woods v. Freeman, 213 N. C., 314, 195 S. E., 812. The ordinance invoked, while its phraseology is practically the same as that of the general statute, C. S., 2621 (288) (b), presents the qucere can a municipality by ordinance prescribe a rule of evidence as is here attempted by providing that any speed in excess on certain limits shall be prima facie evidence that such speed is unlawful. However this may be, if the provision is void by reason of lack of authority to ordain it, the result would be to remove one, at least, of the grounds upon which the defendants rely. If the provision is not void this ground of reliance cannot avail the defendants for the reasons heretofore set forth. *638 “It is a familiar rule tbat a judgment of involuntary nonsuit on tbe .ground of contributory negligence of tbe plaintiff cannot be rendered unless tbe evidence is so clear on tbat issue tbat reasonable minds could draw no other inference. Pearson v. Luther, 212 N. C., 412, 193 S. E., 739; Mulford v. Hotel Co., 213 N. C., 603; Corum v. Tobacco Co., 205 N. C., 213, 171 S. E., 78. This rule bas nothing to do with tbe credibility of witnesses. It applies equally to tbe testimony of tbe plaintiff as to tbat of other witnesses; Tomberlin v. Bachtel, 211 N. C., 265, 268, 189 S. E., 769; Matthews v. Cheatham, 210 N. C., 592, 188 S. E., 87; Smith v. Coach Line, 191 N. C., 589, 591, 132 S. E., 567; and be is entitled also to the benefit of tbe rule tbat upon tbe motion to nonsuit tbe evidence must be considered in tbe light most favorable to tbe plaintiff. Cole v. R. R., 211 N. C., 591, 191 S. E., 353; Lynch v. Telephone Co., 204 N. C., 252, 167 S. E., 847; Gilbert v. Wright, 195 N. C., 165, 141 S. E., 577. Cole v. Koonce, ante, 188 (214 N. C.).” Manheim v. Taxi Corp., 214 N. C., 689, 200 S. E., 382. Upon tbe record we find' No error.