Owens v. . R. R. Co.

175 S.E. 926, 207 N.C. 856, 1934 N.C. LEXIS 511

• Court: Supreme Court of North Carolina
• Decided: September 19, 1934
• Status: Published

Opinion

Civil action by owner and driver of automobile to recover damages for personal injury sustained and damage to automobile, alleged to have been caused by the wrongful act, neglect, or default of the defendant.

The facts are almost identical with those appearing in the case of Bakerv. R. R., 205 N.C. 329, 171 S.E. 342, with the exception that, in the instant case, the plaintiff testified he was not asleep, but ran his car into the center post without seeing it. The scene of the accident is the same; the time 1:00 a.m., 3 June, 1931.

Plaintiff testified that when he first saw the reflector on the pier, or center post, he thought it was a bus or truck on the side of the road; that he turned suddenly and then, "upon seeing these oblique lines (indicating on map) I clipped her back, . . . and that threw me off the distance too far. I saw I was going to hit it (center post) one way or another, and I applied my brakes and hit it 20 or 25 miles an hour instead of hitting it 40 or 45 miles an hour."

From a judgment of nonsuit entered at the close of plaintiff's evidence he appeals, assigning error. That the plaintiff was contributorily negligent appears from his own testimony. Hence, the demurrer to the evidence was properly sustained. S.v. Fulcher, 184 N.C. 663, 113 S.E. 769; Wright v. R. R., 155 N.C. 325,71 S.E. 306; Horne v. R. R., 170 N.C. 645, 87 S.E. 523.

Affirmed.