Broadnax v. Deloatch

PARKER, J. This case should have been submitted to the jury. From plaintiff’s evidence the jury could legitimately have found that defendant, while driving on a clear night upon a 21-foot wide dry paved highway which was free from defects, and without any interference from other traffic, drove his car off of the pavement into the rear of the car occupied by plaintiff’s intestate while that car was parked on the dirt shoulder of the road entirely off of the pavement and with its lights burning. “When a motor vehicle leaves the highway for no apparent cause, it is not for the court to imagine possible explanations. Prima facie, it may accept the normal and probable one of driver-negligence and leave it to the jury to determine the true cause after considering all the evidence — that of defendant as well as plaintiff.” Greene v. Nichols, 274 N.C. 18, 161 S.E. 2d 521. Plaintiff’s evidence was sufficient, therefore, to support a finding that defendant was negligent in at least one of the respects alleged in the complaint and that such negligence was a proximate cause of the injuries and death of the deceased. That was all plaintiff was required to show in order to withstand the motion for nonsuit. Funeral Home v. Pride, 261 N.C. 723, 136 S.E. 2d 120. Appellee contends nonsuit was warranted because of a material variance between plaintiff’s allegations and proof. In his brief ap-pellee states that plaintiff's witness Williams testified he "had seen [625] Floyd Boone get out of his car and he was on the shoulder of the road just when Robert Deloatch passed and ran into the back of his car.” Appellee contends this constituted a material variance from the allegation in plaintiff's complaint that Boone was thrown from, the car. We question whether such a variance, had it existed, should be considered material. However, we do not find it necessary to decide that question, since in the record before us we find no such testimony as is recited in appellee’s brief from the witness Williams or from any other witness. There was testimony that following the collision the doors on Boone's car were found jammed shut and his body was found lying on the ground outside the car. However, there was also testimony that the collision was of such force as to turn Boone’s car completely around. In the process a door could have been sprung open, Boone ejected, and then the door slammed shut. In any event, on the record before us, whether Boone got out of bis car before the collision or whether, as alleged in the complaint, he was thrown out as a result of the collision, were matters for the jury to determine. The judgment of nonsuit is Reversed. Campbell and VaughN, JJ., concur.