Simpson v. Lyerly

Per Cueiam. In passing upon the defendant’s motion for judgment as of nonsuit, the court must consider the plaintiff’s evidence as true, resolve all conflicts therein in his favor, give him the benefit of all reasonable inferences which may be drawn in his favor, and disregard so much of the defendant’s evidence as contradicts that of the plaintiff or tends to show a different state of facts. Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E. 2d 338; Ammons v. Britt, 256 N.C. 248, 123 S.E. 2d 579; Jenkins v. Electric Co., 254 N.C. 553, 119 S.E. 2d 767. A judgment of nonsuit may not be entered on the ground of the plaintiff’s contributory negligence unless the plaintiff’s own evidence establishes such negligence by him so clearly as to permit no other reasonable conclusion. McNamara v. Outlaw, 262 N.C. 612, 138 S.E. 2d 287. When so considered, the evidence is amply sufficient to support a finding that the defendant was negligent and his negligence was the proximate cause of the collision and of the plaintiff’s damage. G.S. 20-154; Coach Co. v. Fultz, 246 N.C. 523, 98 S.E. 2d 860; Grimm v. Watson, 233 N.C. 65, 62 S.E. 2d 538. If the driver of the plaintiff’s truck had been following the defendant’s automobile too closely, his doing so was not a proximate cause of the collision for the collision occurred when the truck was in the act of passing the defendant’s automobile and entirely in its left lane. The failure of the driver of the truck to sound his horn before beginning to pass the defendant’s automobile was a violation of the statute. G.S. 20-149. However, this statute provides that such failure is not negligence or contributory negligence per se, but is merely a circumstance to be considered with other facts in determining whether there was negligence or contributory negligence. This was a question [703] for the jury. The jury considered it and determined the issue in favor of the plaintiff. No error.