Sechler v. Freeze

73 S.E.2d 160, 236 N.C. 522, 1952 N.C. LEXIS 586

Opinion

JOHNSON, J.

The single question presented by this appeal is whether the court erred in allowing defendant’s motion for judgment as of nonsuit.

The plaintiff’s evidence is not at variance with the defendant’s version of how the injury occurred. Indeed, the testimony of Dr. Wrenn, showing grave injuries to the head and arm but no serious injury to legs or hips, indicates that intestate was not struck by the bumper of the ear, but rather tends to show that he must have lunged forward, as the defendant said, with his arm and head coming in contact with the front part of the car above the bumper where the signs were found.

The evidence adduced below, when viewed in its light most favorable to the plaintiff, fails to make out a prima facie case of actionable negligence against the defendant. The case is controlled by the principles explained and applied in Mitchell v. Melts, 220 N.C. 193,18 S.E. 2d 406; Tysinger v. Dairy Products, 225 N.C. 717, 36 S.E. 2d 246. See also Aydlett v. Keim, 232 N.C. 367, 61 S.E. 2d 109; Buccilli v. Shanahan, 266 Pa. 342, 109 A. 634. Negligence is not to be presumed from tbe mere fact of injury or that tbe intestate was killed. Tysinger v. Dairy Products, supra. Tbe decisions relied on by plaintiff are distinguishable.

In tbis view of tbe case, we do not reach for decision tbe question of contributory negligence of tbe intestate.

Tbe judgment below is

Affirmed.