Pollock v. Sound Chevrolet Co., Inc.

Mallard, C.J. .Plaintiff’s only assignment of-" error is that the court qrred. in allowing defendants’ motion for nonsuit at the conclusion of plaintiff’s evidence. This involves' two questions. Was there sufficient evidence favorable to plaintiff to go to the jury? If so, was the plaintiff guilty of contributory negligence as a matter of law? We hold that the answer to the first question is “yes,” and the answer to the second question is “no.” Montford v. Gilbhaar, 265 N.C. 389, 144 S.E. 2d 31. The evidence, taken in the light most favorable to the plaintiff, tends to show that on 13 July 1964 an employee of the defendant Sound Chevrolet Co., Inc., was assisting an employee of the defendant McLean Trucking Company in removing one of the tractor-trailer units of the McLean Trucking Company from its mired or stuck position in the sand on the premises maintained by the North Carolina State Ports Authority in the Town of Morehead City. The tractor-trailer had become stuck in the sand where it had [379] been driven for the purpose of unloading it. The wrecker of the defendant Sound Chevrolet Co., Inc., was standing unattended, with no lights showing, in plaintiff’s lane of travel on an asphalt roadway or street with two cables, each about three-fourths of an inch in diameter, extending across the remaining fifteen feet of the roadway from it to the mired tractor-trailer, thus completely blocking the roadway. These cables were greasy and black-looking and were about three and one-half or four feet above the road. There were no fiares or other warnings of the presence of the cables across the roadway. The plaintiff was operating a Chevrolet convertible northwardly on this roadway and while traveling in second gear at a speed of approximately ten miles per hour struck the cables as she pulled the automobile to her left to go around the wrecker. The cable came across the hood of the automobile and through the windshield causing her to receive injuries. In our opinion the plaintiff’s evidence of negligence was sufficient to be submitted to the jury. As to the contributory negligence of plaintiff, we hold that it is a jury question whether plaintiff operated the Chevrolet automobile at a speed greater than was reasonable and prudent under the circumstances, failed to keep it under proper control, or failed to maintain a reasonable lookout and should have seen the cables under the conditions existing. “Nonsuit on the issue of contributory negligence should be denied when opposing inferences are permissible from plaintiff’s proof.” Montford v. Gilbhaar, supra; 3 Strong, N. C. Index, Negligence, § 26. McLean’s driver testified that he “obtained permission to contact Sound Chevrolet for wrecker service to assist in getting the truck unstuck,” that “they sent one of their wreckers over there to help get the tractor-trailer unstuck,” that he “told the wrecker operator how to connect the cables,” and that he gave directions to the driver of the wrecker. In view of the uncontradicted testimony, the contentions of the defendant McLean Trucking Company that its employee had nothing to do with the removal of the tractor-trailer from the sand and that the Sound Chevrolet Co., Inc., was an independent contractor employed to remove the tractor-trailer from the sand are without merit. The judgment of nonsuit is Reversed. Brock and Parker, JJ., concur.