Wallace v. Longest

WiNBORNs, J. The sole question presented for decision on this appeal relates to the refusal, of the court below to sustain defendant’s motions for judgments as in case of nonsuit. The challenge to the propriety of such action by the court, as stated in brief of defendant, is based in the main upon contention that the oral evidence offered by plaintiffs “is manifestly unreasonable and inherently incredible when tested by commonly known physical laws in the light of incontrovertible physical facts.” While the principle of law invoked in support of this theory is well established in appropriate instances, Davis v. R. R., 170 N. C., 582, 87 S. E., 745; Powers v. Sternberg, 213 N. C., 41, 195 S. E., 88; Austin v. Overton, 222 N. C., 89, 21 S. E. (2d), 887; Ingram v. Smoky Mountain Stages, 225 N. C., 444, 35 S. E. (2d), 337; Tysinger v. Dairy Products, 225 N. C., 717, 36 S. E. (2d), 246, the evidence in the record [168] on this appeal does not present a factual situation to which it may be properly applied. In this connection the only evidence shown in the record, almost entirely oral, is that offered by plaintiffs. The record fails to show that defendant’s photographs, identified by stipulation of parties and by oral testimony, were offered in evidence. Therefore, they may not be considered as evidence. Hence, in considering the exceptions to refusal of defendant’s motions for judgments as of nonsuit, we have, as above stated, only the evidence offered by plaintiffs. However, defendant concedes that he had the benefit of these photographs before the jury, as if they had been offered in evidence. The oral evidence tends to show (1) that the driver of defendant’s truck in meeting the pick-up truck in which plaintiffs were riding was not passing on his right side of the highway, and (2) that he was not giving to the oncoming truck -at least one-half of the main traveled portion of the roadway as nearly as possible, in violation of the provisions of the statute relating to meeting of vehicles. G. S., 20-148. A violation of this statute would be negligence per se. Hobbs v. Coach Co., 225 N. C., 323, 34 S. E. (2d), 211; Tarrant v. Bottling Co., 221 N. C., 390, 20 S. E. (2d), 565. If such violation of this statute were the proximate cause of the injury it would be actionable. Whether it were the proximate cause is a matter for consideration of the jury under the law as declared by the court. But if there were evidence tending to support the theory of the defendant as shown in his answer, that is, that in colliding the right front side of the Ford truck came in contact with the left front end of defendant’s truck as defendant contends his photographs show, still the question as to whether defendant’s truck was on its left side of the highway and, if so, whether that were the proximate cause of the collision would be for the jury. Careful consideration of the question presented, on the record before us, fails to disclose error in the trial court submitting the case to the jury. No exception is taken to the charge. Hence, the ease was largely one of fact for the jury, and the jury has spoken. We find No error.