Stancil v. Blackmon

174 S.E.2d 880, 8 N.C. App. 499, 1970 N.C. App. LEXIS 1593

Opinion

MORRIS, J.

The only question to be determined on this appeal is whether the court erred in allowing defendants’ motions for nonsuit. The doctrine of res ipsa loquitur applies to automobile accidents in some circumstances. Greene v. Nichols, 274 N.C. 18, 161 S.E. 2d 521 (1968). It was there stated that “When a motor vehicle leaves the highway for no apparent cause, it is not for the court to imagine possible explanations. Prima facie, it may accept the normal and probable one of driver-negligence and leave it to the jury to determine the true cause after considering all the evidence — that of defendant as well as plaintiff.” In view of this case, and in the absence of any explanation or findings in the record as to defendants’ negligence, we assume the court granted the motions for nonsuit upon a finding that the plaintiff’s own evidence established his contributory negligence as a matter of law.

When considering a motion for nonsuit based on plaintiff’s contributory negligence, the evidence must be viewed in the light most favorable to the plaintiff, and nonsuit is proper only when the evidence establishes plaintiff’s contributory negligence as a matter of law and not when other reasonable inferences may be drawn or when there are material conflicts in the evidence. See 6 N.C. Index 2d, Negligence, § 35, and cases there cited.

After reviewing the evidence in the light most favorable to plaintiff, we are of the opinion that such questions as whether plaintiff was speeding, whether plaintiff was following too closely and where the cars involved in the accident actually left the road, as they relate to a determination of whether plaintiff was contributorily negligent, should have been for the jury. We cannot say that contributory negligence on the part of the plaintiff has been so clearly established by his evidence that no other conclusion can reasonably be drawn therefrom.

New trial.

Mallard, C.J., and Graham, J., concur.