Cole v. Koonce

Seawell, J. It is a familiar rule that a judgment of involuntary nonsuit on the ground of contributory negligence of the plaintiff cannot be rendered unless the evidence is so clear on that issue that reasonable [191] 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 has nothing to do with the credibility of witnesses. It applies equally to the testimony of the plaintiff as to that 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 he is entitled also to the benefit of the rule that upon a motion to nonsuit the evidence must be considered in the light most favorable to the 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. Where the factors of decision are numerous and complicated, and especially where the opinions and estimates of witnesses play a prominent part, the court must exercise great care to avoid invading the province of the jury, when passing upon the conduct of the plaintiff and his ability, by the exercise of due care, to avoid the consequences of defendant’s negligence. Practically every case must “stand on its own bottom.” We think there is a difference between the fact situation in the case at bar and that presented in Lee v. R. R., 212 N. C., 340, and Weston v. R. R., 194 N. C., 210, 139 S. E., 237, that would justify the submission of the evidence in this case to the jury, without impairing the authority of those cases. The evidence in this case cannot be said to point to the contributory negligence of the plaintiff with that clearness and singleness of inference which must obtain in order to justify the court in taking the case from the jury. We refrain from comment on the evidence which might prejudice either party on a retrial. The judgment of nonsuit is Reversed.