National Spinning Co. v. McLean Trucking Co.

DeNNY, C.J. The plaintiff’s sole assignment of error is to the allowance of defendant’s motion for judgment as of nonsuit at the close of all the evidence. In our opinion, when the plaintiff’s evidence is considered in the light most favorable to it, as it must be on a motion for nonsuit, it is sufficient to carry the case to the jury. Thomas v. Morgan, 262 N.C. 292, 136 S.E. 2d 700; Smith v. Corsat, 260 N.C. 92, 131 S.E. 2d 894; Scott [810] v. Darden, 259 N.C. 167, 130 S.E. 2d 42; Bundy v. Powell, 229 N.C. 707, 51 S.E. 2d 307. The defendant argues and contends that plaintiff’s evidence adduced in the trial below established contributory negligence as a matter of law. The evidence of the plaintiff and that of the defendant bearing on the pertinent issues with respect to negligence and contributory negligence, is in sharp conflict. Whether a nonsuit should be granted on the ground of contributory negligence must be determined in light of the facts in each particular case. Tew v. Runnels, 249 N.C. 1, 105 S.E. 2d 108. “Nonsuit on the issue of contributory negligence should be denied when the relevant facts are in dispute or opposing inferences are permissible from plaintiff’s proof. Contradictions in plaintiff’s evidence do not justify nonsuit on the issue.” Strong’s North Carolina Index, Vol. 3, Negligence, § 26, page 475; Wilson v. Camp, 249 N.C. 754, 107 S.E. 2d 743; Murray v. Wyatt, 245 N.C. 123, 95 S.E. 2d 541; Gilreath v. Silverman, 245 N.C. 51, 95 S.E. 2d 107. In the case of Yandell v. Fireproofing Corp., 239 N.C. 1, 79 S.E. 2d 223, Ervin, J., speaking for the Court, said: “An initial carrier by rail, which furnishes a car for moving freight, owes to the employees of the consignee, who are required to unload the car, the legal duty to exercise reasonable care to supply a car in reasonably safe condition, so that the employees of the consignee can unload the same with reasonable safety. (Numerous cases cited.) A delivering carrier by rail, which delivers to the consignee for unloading a car received by it from a connecting carrier, owes to the employees of the consignee, who are required to unload the car, the legal duty to make a reasonable inspection -of the car to ascertain whether it is reasonably safe for unloading, and to repair or give warning of any dangerous condition in the case discoverable by such an inspection. (Numerous cases cited.)” In Honeycutt v. Bryan, 240 N.C. 238, 81 S.E. 2d 653, the defendant transported a load of structural steel from Charlotte to the site of a building then being erected in Morganton by Herman Sipe Company. When the defendant arrived at the site of the building under construction, he placed his truck as directed by Sipe’s foreman. This put the tractor on a slight decline to the left rear. In unloading I-beams, 20 feet long and 21 inches wide, weighing approximately 1,237 pounds each, the unloading proceeded without mishap until the front end of the fourth beam hooked to some part of the trailer. Plaintiff asked defendant if it would be safe to walk up the beams to the front “to get that one loose,” and defendant told him it was safe. Plaintiff got on the truck and started to walk up the beams to the front, when the rear standard of the truck bent and the beams began sliding off the truck [811] and plaintiff was injured. Barnhill, J., in speaking for the Court, after quoting the above portion of the opinion in Yandell v. Fireproofing Corp., supra, said: “Since the defendant was both the initial and delivering carrier, he owed to Sipe’s employees the duty (1) to exercise reasonable care to furnish a vehicle in reasonably safe condition so that the employees of Sipe could unload the trailer with reasonable safety, and (2) to make a reasonable and timely inspection of the vehicle to ascertain whether it was reasonably safe for unloading, and to repair or give warning of any dangerous condition in the trailer discoverable by such inspection.” The verdict rendered in favor of the plaintiff was affirmed. In our opinion, the instant case is one for the jury on the issues of negligence and contributory negligence, and we so hold. Reversed.