Tamboles v. Antonelli

Higgins, J. The only serious controversy arising on this appeal involves the plea of contributory negligence. The plea in its entirety is quoted in the preliminary statement. The first paragraph sets forth the ultimate facts “the car in front of defendant was observed to reduce speed and the defendant likewise reduced his speed. The car ahead then resumed normal speed, as did the defendant. Suddenly and without any warning whatsoever the car in front of the defendant slammed on brakes and before the defendant could stop, he had run into the forward car (the forward car being driven by Mrs. Ellen).” In these factual allegations there is not a single reference to any act or failure to act on the part of the plaintiff. The facts alleged refer only to the defendant and to Mrs. Ellen, who is not a party to the action. . After the factual recitals above quoted, the defendant set forth further allegations: (1) plaintiff was following too closely; (2) she abruptly reduced speed without first seeing if the move could be made in safety; (3) she failed to give a plainly visible signal of her intention to stop; and (4) she failed to keep a careful lookout and ■her car under control. If we assume the above numbered parts of the plea are allegations of fact, nevertheless the plea is without any support in the evidence. For that reason, it was error to submit the issue to the jury. Rodgers v. Thompson, 256 N.C. 265, 123 S.E. 2d 785; Hunt v. Wooten, 238 N.C. 42, 76 S.E. 2d 326. The defendant admitted his allegations of plaintiff’s contributory negligence were based, not on his knowledge, but on his suppositions. He admitted the Ellen Chevrolet was between him and the plaintiff’s Corvair, and that he did not see or observe the movement of her vehicle and did not know of her failure to act properly in its operation. The defendant’s wife, who was his only witness, testified: “I was not really paying attention to anything. He just said ‘watch out’ and I tightened up my arm on the seat and when I turned around we were hit.” All other witnesses testified for the plaintiff. Their evidence was insufficient to permit a finding of any negligent acts or omissions on her part. Contributory negligence (if properly alleged) is not supported by evidence and hence fails as a defense. Boykin v. Bennett, 253 N.C. 725, 118 S.E. 2d 12; Skipper v. Cheatham, 249 N.C. 706, 107 S.E. 2d 625. The Court committed error in submitting the issue of contributory negligence. We need not consider the plaintiff’s assignment of [78] error as to the charge on that issue since it was not properly before .the jury. By reason of the Court’s error in submitting the issue of contributory negligence, the plaintiff is entitled to and.is.awarded a New trial.