Kidd v. Burton

Bobbitt, J. The only question presented is whether the court erred in granting defendant’s motion for judgment of nonsuit. The rules for testing the sufficiency of the evidence to withstand a motion for nonsuit need not be repeated. Reference is made to Lewis v. Barnhill, 267 N.C. 457, 461, 148 S.E. 2d 536, 540, and cases cited. Barry’s testimony tended to show the Ford was struck by de--fendant’s car in the manner stated below when, at a speed of about ten miles per hour, Barry was beginning to make a right turn into said private driveway and that, for a distance of 125 feet, he had given a signal of his intention to make such right turn. There was [270] no evidence, as distinguished from defendant’s allegations, to the contrary. There was ample evidence to support a finding as to defendant’s actionable negligence. Defendant contends nonsuit was proper on either of two grounds, namely, (1) that there is a fatal variance between plaintiff’s allegations and proof, and (2) that plaintiff’s evidence discloses that Barry, plaintiff’s agent, was contributorily negligent'as a matter of law. Defendant contends the evidence is at variance with plaintiff’s allegation that defendant “drove his automobile into the right rear and right side” of plaintiff’s Ford. There was evidence tending to show the Ford “was damaged on the right side and to the rear” and that the Oldsmobile “was damaged to the left side and to the front”; that the Oldsmobile knocked the Ford “slantwise”; that the Oldsmobile, passing to the right of the Ford, crossed the entrance to the private driveway and stopped some 10-20 feet north of said driveway, partly in the ditch on the east side of said road; and that the Ford, after the collision, was in the road, wholly or partially in the lane for northbound traffic, in front of the entrance to said private driveway. Plaintiff’s allegation must “be liberally construed with a view to substantial justice between the parties.” G.S. 1-151. Moreover, variance, if any, between plaintiff’s allegation and proof cannot “be deemed material, unless it has actually misled defendant to his prejudice.” G.S. 1-168. It would be unreasonably restrictive to interpret plaintiff’s allegation as an allegation that the front of defendant’s car was driven directly against the rear of plaintiff’s Ford. Suffice to say, we perceive no material variance between plaintiff’s allegation and her proof. In this connection, see Dennis v. Albemarle, 242 N.C. 263, 269-270, 87 S.E. 2d 561, 567; Wilson v. Bright, 255 N.C. 329, 121 S.E. 2d 601; 4 Strong, N.C. Index, Trial § 26. With reference to the alleged (contributory) negligence of Barry: Barry testified that, looking south from the entrance to said private driveway, one could see a car for a distance of 300 feet; that, when he was 125 feet south of the private driveway and began to signal for his. right-hand turn, he looked back and saw that no car was approaching from the rear; that defendant came up behind him; and that, when he (Barry) was “a car length from the driveway,” he saw defendant’s car, the right side of which was “on the shoulder.” Defendant contends Barry, in attempting to make a right-hand turn, failed to approach the intersection of said road and said private driveway “in the lane for traffic nearest to the right-hand side of the highway,” and in so doing violated G.S. 20-153. The evi [271] dence, as distinguished from defendant’s allegations, is insufficient to constitute a basis for this contention. Defendant contends Barry was contributorily negligent in that, in violation of G.S. 20-154, he attempted to make a right-hand turn from a direct line without first seeing that such movement could be made in safety. Barry, in making such right-hand turn, was not crossing the line of travel of a vehicle that was either meeting or overtaking him. It was for the jury to determine whether he should have reasonably anticipated that the operation of any other vehicle might be affected by such movement. In Cowan v. Transfer Co. and Carr v. Transfer Co., 262 N.C. 550, 138 S.E. 2d 228, Moore, J., speaking for the Court, said: “Whether, under such circumstances, he could reasonably assume that he could make the movement in safety is a question for the jury. A motorist is not required to ascertain that a turning motion is absolutely free from daliger. Lemons v. Vaughn, 255 N.C. 186, 120 S.E. 2d 527; White v. Lacey, 245 N.C. 364, 96 S.E. 2d 1.” In Cowan-Carr, it was contended that Carr, operating Cowan’s truck, made á left turn across the path of defendants’ overtaking tractor-trailer without first ascertaining that such movement could be made in safety. Here (as in Cowan-Carr) the evidence,' when considered in the light most’ favorable to plaintiff, does not establish contributory negligence as a matter of law. It is unnecessary to review the evidence in greater detail. Suffice to say, the conclusion reached is that the evidence was sufficient to require submission to the jury on the issues raised by the pleadings. According to defendant’s allegations, plaintiff’s car was operated by Barry in a manner entirely different from that described in plaintiff’s evidence. Defendant will have opportunity to offer evidence to support these allegations. The judgment of nonsuit is reversed. Reversed.