Ward ex rel. Ward v. Worley ex rel. Worley

VAUGHN, Judge. Defendant contends that the court below erred in denying his motions for directed verdict and for judgment notwithstanding the verdict by failing to find plaintiff contributorily negligent as a matter of law. “Whether a motion for judgment as of nonsuit should be sustained on the ground that the plaintiff is guilty of contributory negligence as a matter of law, presents in many cases a very difficult question. However, the decision on such motion must be made in light of the facts in each particular case.” Tew v. Runnels, 249 N.C. 1, 105 S.E. 2d 108. “Where conflicting inferences may be drawn from the circumstances, whether the failure of the passenger to avail himself of opportunity for affirmative action for his own safety should constitute contributory negligence is a matter for the jury.” Samuels v. Bowers, 232 N.C. 149, 59 S.E. 2d 787. This problem is also dealt with in Warren v. Lewis, 273 N.C. 457, 160 S.E. 2d 305: “Justice Lake in Douglas v. W. C. Mallison and Son, 265 N.C. 362, 144 S.E. 2d 138, has accurately and concisely [557] stated the rule governing nonsuit on the ground of plaintiff’s contributory negligence. ‘A judgment of nonsuit on the ground of contributory negligence may be entered only when the plaintiff’s evidence, considered alone and taken in the light most favorable to him, so clearly establishes the defense that no other reasonable inference or conclusion can be drawn therefrom. [Citations omitted.] ’ ” We hold that the issue of plaintiff’s contributory negligence was properly submitted to the jury and that the trial judge did not err in failing to allow defendant’s motions for directed verdict and judgment notwithstanding the verdict. Defendant further contends that the court below committed error in its charge to the jury by failing to refer to foreseeability in its definiton of proximate cause. Judge Walton, in the trial below, defined proximate cause as “ . . . the real, the efficient, the dominant cause. A cause without which the injury would not have been sustained. An act is said to be a proximate cause of an injury or damage when in a natural and continuous sequence unbroken by any new or independent cause, it produces the results complained of and without which the injury or damage would not have occurred.” The Supreme Court in Mattingly v. R. R., 253 N.C. 746, 117 S.E. 2d 844 stated its definition of proximate cause as “ ... a cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed.” (Emphasis added.) Nance v. Parks, 266 N.C. 206, 146 S.E. 2d 24; Keener v. Litsinger, 11 N.C. App. 590, 181 S.E. 2d 781. Furthermore, in Pittman v. Swanson, 255 N.C. 681, 122 S.E. 2d 814 the Court stated: “The court’s definition of proximate cause is inadequate, in that, inter alia, it made no reference to foreseeable injury, which is a requisite of proximate cause.” This Court in Keener v. Litsinger, supra, said, “A proper definition of proximate cause is mandatory and a new trial will be ordered where a proper definition is not given. Barefoot v. Joyner, 270 N.C. 388, 154 S.E. 2d 543.” For the reasons stated, defendant is entitled to a new trial. New trial. Judges Brock and Graham concur.