Chesser v. McCall

52 S.E.2d 231, 230 N.C. 119, 1949 N.C. LEXIS 580

Opinion

DeviN, J.

The appeal from the judgment of involuntary nonsuit presents the question whether the plaintiff’s evidence considered in the light most favorable for her was sufficient to carry the case to the jury.

We think it was, and that the judgment of nonsuit was improvidently entered. This view is supported by the decision in Jernigan v. Jernigan, 207 N.C. 851, 175 S.E. 713, where on similar facts nonsuit was reversed. The credibility of the testimony was for the jury. Barlow v. Bus Lines, 229 N.C. 382, 49 S.E. 2d 793. The plaintiff’s evidence does not disclose such an emergency as would relieve the defendant’s action altogether of the imputation of negligence. Sparks v. Willis, 228 N.C. 25, 44 S.E. 2d 343; Hoke v. Greyhound Corp., 227 N.C. 412, 42 S.E. 2d 593. Nor under her testimony may the plaintiff’s action be dismissed on the ground of contributory negligence. Lincoln v. R. R., 207 N.C. 787, 178 S.E. 601. Bogen v. Bogen, 220 N.C. 648, 18 S.E. 2d 162, is inapplicable, here. While defendant’s evidence tended to discredit plaintiff’s case, on motion for nonsuit this evidence is not to be taken into consideration unless favorable to the plaintiff “except, when not in conflict with plaintiff’s evidence, it may be used to explain or make clear that which has been offered by the plaintiff.” Harrison v. R. R., 194 N.C. 656, 140 S.E. 598; Gregory v. Ins. Co., 223 N.C. 124, 25 S.E. 2d 398.

The judgment of nonsuit is

Eeversed.