Poplin v. . Adickes

Stacy, C. J. The case turns, not upon, the negligence of the defendant, which is conceded, but upon the alleged contributory negligence of the plaintiff, which is almost, but not quite, established in the opinion of the majority. At any rate, the thought has prevailed that the question of proximate cause, under the circumstances, is one for the jury. Construction Co. v. R. R., 184 N. C., 179, 113 S. E., 672; Taylor v. Lumber Co., 173 N. C., 112, 91 S. E., 719. The view of the minority *728 is, that the plaintiff took a chance in the presence of obvious danger and lost. Lea v. Utility Co., 175 N. C., 459, 95 S. E., 894; Hamilton v. Lumber Co., 160 N. C., 47, 75 S. E., 1087; Royster v. R. R., 147 N. C., 347, 61 S. E., 179. He almost escaped injury as he was struck by the defendant’s right front fender or bumper, but fell short of his purpose by a step or two. The suggestion is advanced that while the plaintiff may not have pursued the safest course or acted with the best judgment or the wisest prudence, in the light of what occurred, still this ought not to be imputed to him for contributory negligence because he was faced with an emergency which required instant action without opportunity for reflection or deliberation. Smith v. R. R., 200 N. C., 177, 156 S. E., 508; Parker v. R. R., 181 N. C., 95, 106 S. E., 755; Norris v. R. R., 152 N. C., 505, 67 S. E., 1017. In answer to this suggestion, it is said the same principle applies with equal force in favor of the defendant, for he likewise was confronted with a situation of peril and did his best to avoid striking the plaintiff. Patterson v. Ritchie, 202 N. C., 725. It would serve no useful purpose to debate the question; the pertinent principles of law are well settled; the divergence of opinion arises from a different interpretation of the record. The majority voting in favor of affirmance, the verdict and judgment will be upheld. No error.