Alexander v. Robertson

WEBB, Judge. The appellant contends it was error to submit the issue of contributory negligence to the jury. This raises the question of whether there was evidence from which a jury could find that the plaintiff did something immediately before the collision that a reasonably prudent man would not have done or failed to do something which a reasonably prudent man would have done which was a proximate cause of the collision. See 9 Strong’s N.C. Index 3d Negligence § 1 (1977) for a definition of negligence. If there was contributory negligence on the part of the plaintiff it was his failure to keep a proper lookout and to keep his vehicle under control so as to avoid the collision. The evidence is that the [504] visibility was clear. A police vehicle cleared the intersection approximately three car lengths in front of the plaintiff. The plaintiff testified that he did not see the defendant’s vehicle until the time of the collision. This is evidence that the plaintiff did not keep a proper lookout. We believe the evidence that the plaintiffs vehicle struck the defendant’s vehicle on the rear portion of the panel truck is evidence from which a jury could conclude that if the plaintiff had kept a proper lookout he could have avoided the collision. The jury could find that the defendant made the turn a sufficient amount of time before the plaintiff entered the intersection so that his vehicle was more than halfway past the plaintiff’s vehicle at the time of the collision. The jury could find from this that with more vigilance the plaintiff could have avoided the collision. This would support a finding that the plaintiff failed to do something a reasonably prudent man would have done which was a proximate cause of the collision. The contributory negligence issue was properly submitted to the jury. We do not believe our decision in this case is inconsistent with Hout v. Harvell, 270 N.C. 274, 154 S.E. 2d 41 (1967); Dolan v. Simpson, 269 N.C. 438, 152 S.E. 2d 523 (1967); Cline v. Atwood, 267 N.C. 182, 147 S.E. 2d 885 (1966); Moore v. Hales, 266 N.C. 482, 146 S.E. 2d 385 (1966); or Petree v. Johnson, 2 N.C. App. 336, 163 S.E. 2d 87 (1968) upon which the appellant relies. In Hout our Supreme Court affirmed the sustaining of a demurrer to a complaint because on the allegations of the complaint the defendant could not have avoided the collision. In this case we have held that on the evidence a jury could find the plaintiff could have avoided the collision. In Dolan our Supreme Court affirmed a judgment of nonsuit where all the evidence showed the vehicle in which the plaintiff was riding turned in front of the defendant’s vehicle at a time when the defendant could not have avoided the collision. The evidence in Dolan showed the defendant was keeping a proper lookout. In Cline the evidence showed the defendant was the approaching vehicle and was doing all he could to avoid the collision. Our Supreme Court held that a judgment of nonsuit should have been entered. In Moore all the evidence showed that as plaintiff entered an intersection on a dominant street the defendant drove her vehicle through a stop sign and into the side of the plaintiffs vehicle. Our Supreme Court held it was error to submit an issue of contributory negligence. The facts in Moore [505] are easily distinguishable from the facts in this case. In Petree the evidence showed that when the defendant turned in front of the plaintiff the plaintiff did all she could to avoid the collision. Our Supreme Court held that it was not error to overrule the defendant’s motion for nonsuit on the ground the evidence showed contributory negligence as a matter of law. In Petree, as in this case, contributory negligence was held to be a question for the jury. The appellant also assigns error to the defendant’s eliciting from the plaintiff testimony on cross examination that he had been convicted of speeding. This was error. G.S. 8C-1, Rule 609(a) prohibits the admission of evidence of crimes which are not punishable by more than 60 days confinement for the purpose of attacking the credibility of a witness. We do not believe this error was prejudicial. The appellant must show not only that there was error but he must also show that if the error had not occurred there is a reasonable probability that the result of the trial would have been different. See Gregory v. Lynch, 271 N.C. 198, 155 S.E. 2d 488 (1967). We cannot hold there is a reasonable probability that a jury would find the plaintiffs testimony incredible because he had been convicted on one occasion of speeding. No error. Judges Whichard and JOHNSON concur.