Stewart v. Gallimore

Supreme Court of North Carolina

Stewart v. Gallimore

144 S.E.2d 862, 265 N.C. 696, 1965 N.C. LEXIS 1081

CourtSupreme Court of North Carolina

DecidedNovember 24, 1965

Docket534

StatusPublished

Cited by6 cases

This text of 144 S.E.2d 862 (Stewart v. Gallimore) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stewart v. Gallimore, 144 S.E.2d 862, 265 N.C. 696, 1965 N.C. LEXIS 1081 (N.C. 1965).

Pincite

Opinion

Per Curiam.

Upon a motion for judgment as of nonsuit the evidence must be considered in the light most favorable to the plaintiff, all reasonable inferences in his favor must be drawn therefrom and all conflicts must be resolved in his favor. Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E. 2d 338; Ammons v. Britt, 256 N.C. 248, 123 S.E. 2d 579; Jenkins v. Electric Co., 254 N.C. 553, 119 S.E. 2d 767. A nonsuit on the ground of plaintiff’s contributory negligence can be granted only when his own evidence shows such negligence by him so clearly that no other reasonable inference can be drawn therefrom. McNamara v. Outlaw, 262 N.C. 612, 138 S.E. 2d 287.

So interpreted, the evidence is sufficient to permit a finding that the defendant approached the intersection without keeping a proper lookout, that he gave no signal of his intent to turn to his left, that he did not proceed to the center of the intersection before commencing his left turn and that he drove upon the left of the center of Highway 49 as he approached the intersection. Thus, the evidence is sufficient to permit the' jury to find in favor of the plaintiff upon the first issue. G.S. 20-146, 153, 154. While the distance traveled after the impact may tend to show that Kayler was driving at an excessive speed, other evidence offered by the plaintiff is to the contrary. No other evidence offered by the plaintiff tends to show negligence by Kayler. Consequently, a judgment of nonsuit on this ground could not properly have been entered.

In his charge, the judge instructed the jury as to contributory negligence and as to proximate cause. No exception was taken to these portions of the charge. Then, after recounting the alleged acts *700 and omissions of Kayler, which defendant contends constituted contributory negligence, he added the sentence including the phrase “one of the immediate causes” to which the defendant excepts. Technically, it was error to use the phrase “one of the immediate causes” rather than “one of the proximate causes” in this instruction. A proximate cause may be an act or omission which does not immediately precede the injury or damage. Harvell v. Lumber Co., 154 N.C. 254, 70 S.E. 389. However, each act or omission by the plaintiff’s driver shown by the defendant’s evidence,. assuming it to be true, continued up to the moment of the collision. Such.acts or omissions, if they occurred, and if they were proximate causes’ of the collision were also immediate causes of it. When considered in the light of these circumstances, and in connection with other portions of the charge with reference to negligence and causation, the use of the term “one of the immediate causes” was harmless error and not prejudicial to the defendant. Such error is not a sufficient basis for granting a new trial. Burgess v. Construction Co., 264 N.C. 82, 140 S.E. 2d 766.

No error.

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Per Curiam.

Upon a motion for judgment as of nonsuit the evidence must be considered in the light most favorable to the plaintiff, all reasonable inferences in his favor must be drawn therefrom and all conflicts must be resolved in his favor. Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E. 2d 338; Ammons v. Britt, 256 N.C. 248, 123 S.E. 2d 579; Jenkins v. Electric Co., 254 N.C. 553, 119 S.E. 2d 767. A nonsuit on the ground of plaintiff’s contributory negligence can be granted only when his own evidence shows such negligence by him so clearly that no other reasonable inference can be drawn therefrom. McNamara v. Outlaw, 262 N.C. 612, 138 S.E. 2d 287.

So interpreted, the evidence is sufficient to permit a finding that the defendant approached the intersection without keeping a proper lookout, that he gave no signal of his intent to turn to his left, that he did not proceed to the center of the intersection before commencing his left turn and that he drove upon the left of the center of Highway 49 as he approached the intersection. Thus, the evidence is sufficient to permit the' jury to find in favor of the plaintiff upon the first issue. G.S. 20-146, 153, 154. While the distance traveled after the impact may tend to show that Kayler was driving at an excessive speed, other evidence offered by the plaintiff is to the contrary. No other evidence offered by the plaintiff tends to show negligence by Kayler. Consequently, a judgment of nonsuit on this ground could not properly have been entered.

In his charge, the judge instructed the jury as to contributory negligence and as to proximate cause. No exception was taken to these portions of the charge. Then, after recounting the alleged acts *700 and omissions of Kayler, which defendant contends constituted contributory negligence, he added the sentence including the phrase “one of the immediate causes” to which the defendant excepts. Technically, it was error to use the phrase “one of the immediate causes” rather than “one of the proximate causes” in this instruction. A proximate cause may be an act or omission which does not immediately precede the injury or damage. Harvell v. Lumber Co., 154 N.C. 254, 70 S.E. 389. However, each act or omission by the plaintiff’s driver shown by the defendant’s evidence,. assuming it to be true, continued up to the moment of the collision. Such.acts or omissions, if they occurred, and if they were proximate causes’ of the collision were also immediate causes of it. When considered in the light of these circumstances, and in connection with other portions of the charge with reference to negligence and causation, the use of the term “one of the immediate causes” was harmless error and not prejudicial to the defendant. Such error is not a sufficient basis for granting a new trial. Burgess v. Construction Co., 264 N.C. 82, 140 S.E. 2d 766.

No error.

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Bluebook (online)

144 S.E.2d 862, 265 N.C. 696, 1965 N.C. LEXIS 1081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-gallimore-nc-1965.

Opinion

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