{ "id": 8555872, "name": "J. F. DUKE v. SARAH K. TANKARD, Administratrix of the Estate of MRS. J. M. TANKARD, and JOHN M. TANKARD, JR.", "name_abbreviation": "Duke v. Tankard", "decision_date": "1969-02-05", "docket_number": "No. 682SC374", "first_page": "563", "last_page": "566", "citations": [ { "type": "official", "cite": "3 N.C. App. 563" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "90 S.E. 2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621821 ], "opinion_index": 0, "case_paths": [ "/nc/243/0120-01" ] }, { "cite": "47 S.E. 2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 778", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628569 ], "opinion_index": 0, "case_paths": [ "/nc/228/0778-01" ] }, { "cite": "122 S.E. 2d 603", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "255 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572459 ], "opinion_index": 0, "case_paths": [ "/nc/255/0699-01" ] }, { "cite": "110 S.E. 2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "250 N.C. 701", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625931 ], "opinion_index": 0, "case_paths": [ "/nc/250/0701-01" ] }, { "cite": "156 S.E. 2d 727", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "271 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564065 ], "opinion_index": 0, "case_paths": [ "/nc/271/0372-01" ] }, { "cite": "162 S.E. 2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "1 N.C. App. 508", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554131 ], "opinion_index": 0, "case_paths": [ "/nc-app/1/0508-01" ] }, { "cite": "110 S.E. 2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "250 N.C. 665", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625705 ], "opinion_index": 0, "case_paths": [ "/nc/250/0665-01" ] }, { "cite": "150 S.E. 2d 856", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "268 N.C. 395", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562402 ], "opinion_index": 0, "case_paths": [ "/nc/268/0395-01" ] } ], "analysis": { "cardinality": 403, "char_count": 7316, "ocr_confidence": 0.573, "pagerank": { "raw": 8.685371297493976e-08, "percentile": 0.4927020841755639 }, "sha256": "525872fde0ee1a53ebe6aba516dd883568b998998012605fb7aab3d2dc403559", "simhash": "1:940549240e0d5c56", "word_count": 1201 }, "last_updated": "2023-07-14T16:33:22.618564+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BROCK and Paricer, JJ., concur." ], "parties": [ "J. F. DUKE v. SARAH K. TANKARD, Administratrix of the Estate of MRS. J. M. TANKARD, and JOHN M. TANKARD, JR." ], "opinions": [ { "text": "Beitt, J.\nIn their brief, defendants concede that plaintiff\u2019s evidence of negligence on the part of defendants was sufficient to carry the case to the jury on the first issue. They. contend, however, that plaintiff\u2019s evidence, taken in the light most favorable to him, established contributory negligence as a matter of law and that the trial judge erred in overruling defendants\u2019 motion for judgment as of nonsuit interposed at the conclusion of plaintiff\u2019s evidence and renewed at the conclusion of all the evidence.\nIt is a well-established principle of law in this jurisdiction that a motion for judgment of nonsuit on the ground of contributory negligence will be granted only when plaintiff\u2019s own evidence establishes the facts necessary to show contributory negligence so clearly that no other conclusion can be reasonably drawn therefrom. Bass v. McLamb, 268 N.C. 395, 150 S.E. 2d 856; Johnson v. Thompson, 250 N.C. 665, 110 S.E. 2d 306; Williams v. Hall, 1 N.C. App. 508, 162 S.E. 2d 84.\nNonsuit on the ground of contributory negligence should be allowed only when plaintiff\u2019s evidence, taken in the light most favorable to him, so clearly establishes the defense that no other reasonable inference or conclusion can be drawn therefrom. Galloway v. Hartman, 271 N.C. 372, 156 S.E. 2d 727; Waters v. Harris, 250 N.C. 701, 110 S.E. 2d 283. Further, nonsuit on the ground of contributory negligence should be denied if diverse inferences upon the question are permissible from plaintiff\u2019s proof. Galloway v. Hartman, supra; Wooten v. Russell, 255 N.C. 699, 122 S.E. 2d 603; Williams v. Hall, supra.\nThe evidence in the instant case disclosed that the collision complained of occurred in the nighttime. Prior to 1953, the Supreme Court of North Carolina, in numerous cases, held that the plaintiff was guilty of contributory negligence as a matter of law for \u201coutrunning his headlights\u201d at the time of the collision. In Tyson v. Ford, 228 N.C. 778, 47 S.E. 2d 251, Stacy, C.J., clearly laid down the rule and listed numerous decisions of the court in which the rule had been applied as well as those in which the rule was not applied.\nHowever, the General Assembly passed an act, Chapter 1145 of 1953 Session Laws, amending G.S. 20-141 (e) by adding thereto the proviso \u201cthat the failure or inability of a motor vehicle operator who is operating such vehicle within the maximum speed limits described by G.S. 20-141 (b) to stop such vehicle within the radius of the lights thereof or within the range of his vision shall not be considered negligence per se or contributory negligence per se in any civil action, but the facts relating thereto may be considered with other facts in such action in determining the negligence or contributory negligence of such operator.\u201d\nIn Burchette v. Distributing Co., 243 N.C. 120, 90 S.E. 2d 232, in an opinion by Winborne, J. (later C.J.), our Supreme Court interpreted the 1953 proviso as follows:\n\u201c* * * [I]f the driver of a motor vehicle who is operating it within the maximum speed limits prescribed by G.S. 20-141 (b) fails to stop such vehicle within the radius of the lights of the vehicle or within the range of his vision, the courts may no longer hold such failure to be negligence per se, or contributory negligence per se, as the case may be, that is, negligence or contributory negligence, in and of itself, but the facts relating thereto may be considered by the jury, with other facts in such action in determining whether the operator be guilty of negligence, or contributory negligence, as the case may be. * * *\u201d\nThe interpretation declared by our Supreme Court in Burchette v. Distributing Co., supra, was quoted with approval in Bass v. McLamb, supra, in an opinion by Branch, J.\nPlaintiff\u2019s evidence tended to show the following: On 4 November 1964 in the nighttime at about 6:30 p.m., he was driving his 1961 Dodge in an easterly direction on Highway 264 in Beaufort County between Washington and Yeatsville. He was traveling 50-55 mph in open country where the posted speed limit was 60 mph. The weather was clear, visibility good, the road was dry, and there was no fog. His lights were burning good, on high beam. As he came out of a long curve to the right, defendants\u2019 cow suddenly appeared in plaintiff\u2019s lane of travel, crossing the highway from plaintiff\u2019s right to left. The cow was only 10-12 feet in front of plaintiff when he first saw him, and although he applied his brakes, he struck the cow with considerable force.\nWe hold that plaintiff\u2019s evidence did not show that plaintiff was contributorily negligent as a matter of law and the trial judge properly overruled defendants\u2019 motions for nonsuit.\nNo error.\nBROCK and Paricer, JJ., concur.", "type": "majority", "author": "Beitt, J." } ], "attorneys": [ "LeRoy Scott for 'plaintiff appellee.", "Rodman & Rodman by Edward N. Rodman for defendant appellants." ], "corrections": "", "head_matter": "J. F. DUKE v. SARAH K. TANKARD, Administratrix of the Estate of MRS. J. M. TANKARD, and JOHN M. TANKARD, JR.\nNo. 682SC374\n(Filed 5 February 1969)\n1. Negligence \u00a7 35\u2014 nonsuit for contributory negligence\nMotion for nonsuit on the ground of contributory negligence will be granted only when plaintiff\u2019s own evidence establishes the facts necessary to show contributory negligence so clearly that no other conclusion can be reasonably drawn therefrom.\n2. Negligence \u00a7 35\u2014 nonsuit for contributory negligence\nNonsuit on the ground of contributory negligence should be denied if diverse inferences upon the question are permissible from plaintiff\u2019s proof.\n3. Automobiles \u00a7 13\u2014 outrunning headlights\nWhere a motorist is traveling within the maximum speed limits prescribed. by G.S. 20-141 (b), his failure to stop his vehicle within the radius of his lights or the range of his vision is not contributory negligence per se, but is only evidence to be considered with other circumstances in the case.\n4. Animals \u00a7 3\u2014 collision with animal roaming at large \u2014 negligence \u2014 contributory negligence\nIn an action for personal injuries and property damage sustained when plaintiff\u2019s automobile collided with defendant\u2019s cow, plaintiff\u2019s evidence is held not to- disclose contributory negligence as a matter of law where it tends to show that plaintiff was driving in the nighttime within the speed limit with his lights on high beam when defendant\u2019s cow suddenly appeared in his lane of travel at a point 10-12 feet in front of plaintiff, and that although he applied his brakes, plaintiff struck the cow with considerable force.\nAppeal by defendants from Cohoon, J., at the May 1968 Civil Session of Beaueoet Superior Court.\nThis is a civil action instituted by plaintiff in which he attempts to recover for personal injuries and property damage sustained by him on 4 November 1964 when the. automobile owned and operated by plaintiff collided with a cow belonging to defendants and which was running at large.\nDefendants filed answer and counterclaim, pleading contributory negligence on the part of plaintiff and asking for damages for the loss of their cow. Plaintiff replied, pleading contributory negligence to the counterclaim.\nAt trial, issues of negligence, contributory negligence and damages were submitted on plaintiff\u2019s claim, and similar issues were submitted on defendants\u2019 counterclaim. The jury answered the issues in favor of plaintiff, and from judgment entered thereon, defendants appealed.\nLeRoy Scott for 'plaintiff appellee.\nRodman & Rodman by Edward N. Rodman for defendant appellants." }, "file_name": "0563-01", "first_page_order": 583, "last_page_order": 586 }