Robbins v. Crawford

99 S.E.2d 852, 246 N.C. 622, 1957 N.C. LEXIS 504

Opinion

JohNson, J.

Defendant’s evidence which is not at variance with plaintiff’s evidence but which tends to explain and clarify it, may be considered on motion to nonsuit. Nance v. Hitch, 238 N.C. 1, 76 S.E. 2d 461.

When the whole of the evidence in the case at hand is read in the light of this rule, it is apparent that the plaintiff's evidence is not at material variance with the defendants’ version of how the wreck occurred. Both versions disclose that as the defendant’s tractor-trailer rounded the curve below the overpass, the Oldsmobile driven by the intestate came out from the east shoulder of the road, on the tractor driver’s right, and cut immediately in front of him.

The plaintiff relies on the physical facts to make out his case. However, as was said by Barnhill, C. J., in Whitson v. Frances, 240 N.C. 733, 737, 83 S.E. 2d 879, 881, “When, in a case such as this, the plaintiff must rely on the physical facts and other evidence which is circumstantial in nature, he must establish attendant facts and circumstances which reasonably warrant the inference that the death of his intestate was proximately caused by the actionable negligence of the defendant. Sowers v. Marley, 235 N.C. 607, 70 S.E. 2d 670, and cases cited; Mitchell v. Melts, 220 N.C. 793, 18 S.E. 2d 406.

“The inferences contemplated by this rule are logical inferences reasonably sustained by the evidence when considered in the light most favorable to the plaintiff. Atkins v. Transportation Co., 224 N.C. 688, 32 S.E. 2d 209; Sowers v. Marley, supra. It cannot be made to rest on conjecture or surmise. It must be ‘a permissible conclusion drawn by reason from a premise established by proof.’ Sowers v. Marley, supra.”

Negligence is not to be presumed from the mere fact of injury or from the fact that the intestate was killed. Sechler v. Freeze, 236 N.C. 522, 73 S.E. 2d 160; Tysinger v. Dairy Products, 225 N.C. 717, 36 S.E. 2d 246.

Viewing the evidence adduced below in its light most favorable to the plaintiff, we find no support for any reasonable inference of negli gence on the part of tractor-driver Crawford as a proximate cause of the collision.

In this view of the case it is not necessary to discuss the question of contributory negligence.

The judgment below is

Affirmed.