Carr v. Scott

BRITT, Judge. Plaintiff assigns as error the trial court’s allowance of defendants’ motion for a directed verdict. We think the motion was properly allowed on the ground of plaintiff’s contributory negligence as a matter of law. In Bledsoe v. Gaddy, 10 N.C. App. 470, 472, 179 S.E. 2d 167, 169 (1971), the test for determining whether a directed verdict should be allowed on the basis of contributory negligence is stated: “A directed verdict on the ground of contributory negligence will be allowed only when plaintiff’s evidence, taken in the light most favorable to him, so clearly establishes contributory negligence that no other reasonable inference or conclusion can be drawn therefrom. Galloway v. Hartman, 271 N.C. 372, 156 S.E. 2d 727 (1967); Anderson v. Mann, 9 N.C. App. 397, 176 S.E. 2d 365 (1970).” “Before attempting to pass another vehicle traveling in the same direction on the highway in front of him, a driver must exercise due care to see that he can pass in safety ....” 2 Strong’s N.C. [157] Index 3d, Automobiles § 16.3, p. 83. “A party may not recover for injuries resulting from a hazard which he helps to create. He is con-tributorily negligent if he knows of a dangerous condition and voluntarily goes into the place of the danger.” 6 Strong’s N.C. Index 2d, Negligence § 13, p. 35. In the case at hand we think plaintiff failed to exercise due care in the operation of his truck before and during his passing maneuver, and that his conduct was a proximate cause of the accident. Plaintiff’s testimony tended to show that although he saw that defendants’ truck was straddling the center line, and that the protruding angle irons created a dangerous condition, he was determined to pass the truck even if he had to drive on the median to do so. In Dreher v. Divine, 192 N.C. 325, 327, 135 S.E. 29, 30 (1926), in an opinion by Stacy, C.J., we find: “One who operates an automobile should have it under control and if the driver of a front car has no knowledge of an approaching vehicle from the rear, and apparently does not hear its approach, the driver of the rear or trailing vehicle should reduce his speed and stop, if necessary, to avoid a collision or an injury. He cannot proceed regardless of the fact that the driver of the front vehicle does not turn to the right of the road, unless there be ample room to pass in safety without it.” For the reasons stated, the judgment appealed from is Affirmed. Chief Judge BROCK and Judge MORRIS concur.