Grimm v. Watson

62 S.E.2d 538, 233 N.C. 65, 1950 N.C. LEXIS 659

• Court: Supreme Court of North Carolina
• Decided: December 13, 1950
• Docket: 603
• Status: Published

Opinion

EbviN, J.

Tbe defendant reserved exceptions to tbe refusal of bis ^notions for a compulsory nonsuit under G.S. 1-183.

Under tbe statute codified as G.S. 20-154, any person who undertakes to drive a motor vehicle upon a highway must exercise reasonable care to ascertain that such movement can be made in safety before be turns either to tbe right or tbe left from a direct line. Besides be is required by tbe same statute to signal bis intention to turn in tbe prescribed manner and for tbe specified distance before changing bis course “whenever tbe operation of any other vehicle may be affected by such movement.” A motorist violates G.S. 20-154 and in consequence is negligent as a matter of law if be fails to observe either of these statutory precautions in changing tbe course of bis vehicle upon tbe highway, and bis negligence in such respect is actionable if it proximately causes injury to another. Cooley v. Baker, 231 N.C. 533, 58 S.E. 2d 115. This being so, tbe issue of whether tbe driver of tbe defendant’s bus was guilty of actionable negligence was rightly adjudged to be a question of fact for tbe determination of tbe jury.

This brings us to the defendant’s contention that the plaintiff was eontributorily negligent as a matter of law.

The plea of contributory negligence in this case is simply this: (1) That the plaintiff drove his automobile upon the highway at an excessive speed and without keeping a proper lookout; and (2) that such specific acts of negligence proximately contributed to the plaintiff’s damage and injury. The controlling rule on this phase of the litigation is elaborated in Bundy v. Powell, 229 N.C. 707, 51 S.E. 2d 307, where this language is used: “Contributory negligence is an affirmative defense which the defendant must plead and prove. G-.S. 1-139. Nevertheless, the rule is firmly embedded in our adjective law that a defendant may take advantage of his plea of contributory negligence by a motion for a compulsory judgment of nonsuit under G.S. 1-183 when the facts necessary to show the contributory negligence are established by the plaintiff’s own evidence.”

The testimony of the plaintiff at the trial did not establish the facts indispensable to the defendant’s plea of contributory negligence. Hence, the trial judge rightly rejected the argument that the plaintiff was guilty of contributory negligence as a matter of law.

The questions raised by the remaining exceptions have been decided adversely to defendant in well considered precedents, and require no discussion.

The judgment of the Superior Court is upheld, for there is in law

No error.