Davis v. . Jeffreys

150 S.E. 488, 197 N.C. 712, 1929 N.C. LEXIS 344

• Court: Supreme Court of North Carolina
• Decided: November 20, 1929
• Status: Published

Opinion

Stacy, C. J.,-

after stating the' case: Conceding that the defendants were negligent in allowing their truck and trailer to stand partly across the highway in the night time, without lights, in violation of C. S., 2615, still we think the evidence discloses .a. clear case of contributory negligence on the part of the plaintiff which bars a recovery. Hughes v. Luther, 189 N. C., 841, 128 S. E., 145.

Contributory negligence, such as will defeat a recovery in an action like the present, is the negligent act of the plaintiff, which concurring and cooperating, with the negligent act of the defendants, thereby becomes the real, .efficient, and proximate cause of the injury, or the cause ’without which the injury would not have occurred. Bailey v. R. R., 196 N. C., 515, 146 S. E., 135; Elder v. R. R., 194 N. C., 617, 140 S. E., 298; Weston v. R. R., 194 N. C., 210. And it is sufficient to defeat a recovery, in a case like the one at bar, if the plaintiff’s negligence is one of the proximate causes of the injury; it need not be the sole proximate cause. Construction Co. v. R. R., 184 N. C., 179, 113 S. E., 672. The expression “contributory negligence” implies ex vi termini that the negligence of the defendant is one of the causes of the injury. Fulcher v. Lumber Co., 191 N. C., 408, 132 S. E., 9.

A motorcycle 'running, on a dark rainy night, fast enough to- be demolished and thrown back a distance of 40 feet on striking a truck standing in the road, was necessarily being driven at a reckless rate of , speed under the circumstances disclosed by the record.

A judgment of nonsuit is properly entered when the contributory negligence of the plaintiff is established by his own evidence, as he thus •proves himself out of court. Holton v. R. R., 188 N. C., 277, 124 S. E., 307; Wright v. R. R., 155 N. C., 325, 71 S. E., 306.

Affirmed.