Lindley v. Fries Manufacturing & Power Co.

69 S.E. 274, 153 N.C. 394, 1910 N.C. LEXIS 95

• Court: Supreme Court of North Carolina
• Decided: November 10, 1910
• Status: Published

Opinion

Pee CuRiAM.

Upon an examination of the record we find very little if any evidence of negligence upon the part of the defendant, but as there was no motion to nonsuit and no prayer for instruction upon the first issue, we assume that issue to be properly found.

In order to avoid the force and effect of the finding upon the second issue, the plaintiff seeks to show under the third issue that after discovering plaintiff’s peril the motorman of the defendant’s car failed to exercise due care in endeavoring to avoid injury.

We have examined the record and the conclusion is forced upon us from all the evidence that the proximate cause of the injury was the reckless and unlawful driving of his automobile by plaintiff through the streets of Waughtown at a dangerous rate of speed when approaching the car line tracks.

The evidence of gross contributory negligence is overwhelming and is of such character that it bars recovery.

It was the plaintiff’s duty to slow down his machine when approaching the tracks, and to have it under complete control and to look and listen for an approaching car. If he did not ob serve tbe poles and trolley wires immediately in front of bim it was plaintiff’s fault. All tbe evidence as well as tbe photograph exhibits show they were visible some distance ahead of him. It is manifest tbe collision was brought about by the unwarranted attempt upon part of plaintiff to rush across the track ahead of tbe approaching car. Tbe evidence is not sufficient to show that tbe motorman by ordinary prudence under tbe circumstances could have either foreseen or prevented tbe consequences of plaintiff’s recklessness. His injury was brought about by bis own fault, and tbe consequence of his recklessness should be borne by him and not by defendant. Upon the evidence and pleadings there was error in submitting tbe third issue.

Upon the findings upon the first and second issues the defendant is entitled to tbe judgment moved for.

Tbe cause is remanded with instructions to enter judgment accordingly.

Reversed.