Mavrolas v. Gregory

113 S.E.2d 299, 252 N.C. 220, 1960 N.C. LEXIS 414

Opinion

WinboRne, C. J.

Much has been written on the law pertaining to the subject of this action. Hawes v. Refining Co., 236 N.C. 643, 74 S.E. 2d 17; Matheny v. Coach Co., 233 N.C. 673, 65 S.E. 2d 361; Batchelor v. Black, 232 N.C. 314, 59 S.E. 2d 817; and on petition to rehear 232 N.C. 745, 61 S.E. 2d 894; Badders v. Lassiter, 240 N.C. 413, 82 S.E. 2d 357; Jackson v. McCoury, 247 N.C. 502, 101 S.E. 2d 377 and others.

But conceding, as is done for the purpose of this appeal, that the evidence taken in the light most favorable to plaintiff makes out a prima facie case of actionable negligence against the defendants, the pivotal question is whether the evidence shown in the record of case on appeal, taken in the light most favorable to plaintiff, and giving to him the benefit of every reasonable intendment andi inference to be drawn therefrom, tested by pertinent statutes of this State and decisions of this Court, is so clear in meaning as to sustain the defendants’ contention that plaintiff was contributorily negligent as a matter of law in the operation of his motor vehicle at and in the intersection, and that such negligence was a proximate cause of the collision.

The Court is constrained to hold that the evidence presents a case for the jury on the issue of contributory negligence. Hence there is error in the judgment as of nonsuit. Cases relied upon by appellee are distinguishable in factual situation from those in the case in hand.

Therefore since in the light of this holding there must be a new trial, the Court refrains from a discussion of the evidence.

Reversed.