Brafford v. Cook

Supreme Court of North Carolina

Brafford v. Cook

62 S.E.2d 327, 232 N.C. 699, 1950 N.C. LEXIS 633

CourtSupreme Court of North Carolina

DecidedNovember 22, 1950

Docket525

StatusPublished

Cited by23 cases

This text of 62 S.E.2d 327 (Brafford v. Cook) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brafford v. Cook, 62 S.E.2d 327, 232 N.C. 699, 1950 N.C. LEXIS 633 (N.C. 1950).

Pincite

Opinion

Stacy, C. J.

It would seem that the trial court was influenced by the ■defendant’s evidence in sustaining his demurrer and entering a compulsory nonsuit. However, as the defendant’s evidence is in direct conflict with the evidence of the plaintiff, its credibility is for the jury and it is not to be considered by the court on motion for involuntary nonsuit. Jackson v. Hodges, Comr., ante, 694; Graham v. Gas Co., 231 N.C. 680.

For present purposes, the plaintiff’s evidence is to be taken as true, and he is entitled to every reasonable intendment and legitimate inference fairly deducible therefrom. Howard v. Bell, ante, 611; Graham v. Gas Co., supra; Higdon v. Jaffa, 231 N.C. 242, 56 S.E. 2d 661; S. v. Blankenship, 229 N.C. 589, 50 S.E. 2d 724; Love v. Zimmerman, 226 N.C. 389, 38 S.E. 2d 220; Highway Com. v. Transp. Corp., 226 N.C. 371, 38 S.E. 2d 214; Davis v. Wilmerding, 222 N.C. 639, 24 S.E. 2d 337; Diamond v. Service Stores, 211 N.C. 632, 191 S.E. 355; Lincoln v. R. R., 207 N.C. 787, 178 S.E. 601.

If the defendant came from behind the car in the northern lane at a terrific rate of speed, knocked the plaintiff angling for a distance of *701 15 yards and was unable to stop bis truck under 75 yards from where be ■struck tbe plaintiff, as plaintiff’s witness says, it would seem to be fairly ■debatable whether his speed was reasonable and prudent under the conditions then existing. G.S. 20-141 (a); S. v. Blankenship, supra; Steelman v. Benfield, 228 N.C. 651, 46 S.E. 2d 829; Baker v. Perrott, 228 N.C. 558, 46 S.E. 2d 461; Hoke v. Greyhound Corp., 226 N.C. 692, 40 S.E. 2d 345; Tarrant v. Bottling Co., 221 N.C. 390, 20 S.E. 2d 565; Kolman v. Silbert, 219 N.C. 134, 12 S.E. 2d 915. True, the testimony of plaintiff’s witness as to the speed of the truck was weakened somewhat on cross-examination, but this would still require a finding to determine the matter. Shell v. Roseman, 155 N.C. 90, 71 S.E. 86. Discrepancies and contradictions, ■even in plaintiff’s evidence, are for the twelve and not for the court. Jackson v. Hodges, supra, and cases cited; Bailey v. Michael, 231 N.C. 404, 57 S.E. 2d 372; Barlow v. Bus Lines, 229 N.C. 382, 49 S.E. 2d 793; Emery v. Ins. Co., 228 N.C. 532, 46 S.E. 2d 309; Lincoln v. R. R., supra.

The case seems to be one for the jury. Williams v. Kirkman, ante, 609; Bailey v. Michael, supra; Lincoln v. R. R., supra.

Eeversed.

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Stacy, C. J.

It would seem that the trial court was influenced by the ■defendant’s evidence in sustaining his demurrer and entering a compulsory nonsuit. However, as the defendant’s evidence is in direct conflict with the evidence of the plaintiff, its credibility is for the jury and it is not to be considered by the court on motion for involuntary nonsuit. Jackson v. Hodges, Comr., ante, 694; Graham v. Gas Co., 231 N.C. 680.

For present purposes, the plaintiff’s evidence is to be taken as true, and he is entitled to every reasonable intendment and legitimate inference fairly deducible therefrom. Howard v. Bell, ante, 611; Graham v. Gas Co., supra; Higdon v. Jaffa, 231 N.C. 242, 56 S.E. 2d 661; S. v. Blankenship, 229 N.C. 589, 50 S.E. 2d 724; Love v. Zimmerman, 226 N.C. 389, 38 S.E. 2d 220; Highway Com. v. Transp. Corp., 226 N.C. 371, 38 S.E. 2d 214; Davis v. Wilmerding, 222 N.C. 639, 24 S.E. 2d 337; Diamond v. Service Stores, 211 N.C. 632, 191 S.E. 355; Lincoln v. R. R., 207 N.C. 787, 178 S.E. 601.

If the defendant came from behind the car in the northern lane at a terrific rate of speed, knocked the plaintiff angling for a distance of *701 15 yards and was unable to stop bis truck under 75 yards from where be ■struck tbe plaintiff, as plaintiff’s witness says, it would seem to be fairly ■debatable whether his speed was reasonable and prudent under the conditions then existing. G.S. 20-141 (a); S. v. Blankenship, supra; Steelman v. Benfield, 228 N.C. 651, 46 S.E. 2d 829; Baker v. Perrott, 228 N.C. 558, 46 S.E. 2d 461; Hoke v. Greyhound Corp., 226 N.C. 692, 40 S.E. 2d 345; Tarrant v. Bottling Co., 221 N.C. 390, 20 S.E. 2d 565; Kolman v. Silbert, 219 N.C. 134, 12 S.E. 2d 915. True, the testimony of plaintiff’s witness as to the speed of the truck was weakened somewhat on cross-examination, but this would still require a finding to determine the matter. Shell v. Roseman, 155 N.C. 90, 71 S.E. 86. Discrepancies and contradictions, ■even in plaintiff’s evidence, are for the twelve and not for the court. Jackson v. Hodges, supra, and cases cited; Bailey v. Michael, 231 N.C. 404, 57 S.E. 2d 372; Barlow v. Bus Lines, 229 N.C. 382, 49 S.E. 2d 793; Emery v. Ins. Co., 228 N.C. 532, 46 S.E. 2d 309; Lincoln v. R. R., supra.

The case seems to be one for the jury. Williams v. Kirkman, ante, 609; Bailey v. Michael, supra; Lincoln v. R. R., supra.

Eeversed.

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62 S.E.2d 327, 232 N.C. 699, 1950 N.C. LEXIS 633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brafford-v-cook-nc-1950.

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