{
  "id": 8555888,
  "name": "CHARLEY W. TINDLE v. BOBBIE DAVIS DENNY",
  "name_abbreviation": "Tindle v. Denny",
  "decision_date": "1969-02-05",
  "docket_number": "No. 6921SC58",
  "first_page": "567",
  "last_page": "571",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
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  "last_updated": "2023-07-14T16:33:22.618564+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Campbell and MoRRis, JJ., concur."
    ],
    "parties": [
      "CHARLEY W. TINDLE v. BOBBIE DAVIS DENNY"
    ],
    "opinions": [
      {
        "text": "BROCK, J.\nOn motion to nonsuit, the plaintiff\u2019s evidence is to be taken as true, and all the evidence must be considered in the light most favorable to the plaintiff, giving him the benefit of every fact and inference of fact pertaining to the issues which may be reasonably deduced from the evidence. The defendant\u2019s evidence which tends to impeach or contradict the plaintiff\u2019s evidence is not to be considered, butl clef\u00e9ndant\u2019s evidence, may' be considered to the extent that it is not in conflict with plaintiff\u2019s, evidence and tends to make clear or explain plaintiff's evidence. Discrepancies and contradictions, even in plaintiff\u2019s evidence, are for the jury and not for the court; and therefore, discrepancies and contradictions in the plaintiff\u2019s evidence do not justify a nonsuit. The function of the court is to determine only whether the facts and circumstances in evidence, considered in the light most favorable to the plaintiff, tend to make out and sustain the cause of action alleged in the complaint. And it is the function of the jury alone to weigh the evidence, determine the credibility of the witnesses and the probative force to be given their testimony, and determine what the evidence proves or fails to prove. In weighing the credibility of the testimony, the jury has the right to believe any part or none of it. Brinkley v. Insurance Co., 271 N.C. 301, 156 S.E. 2d 225.\nTesting plaintiff\u2019s evidence in the light of these principles, it discloses the following facts and circumstances. Plaintiff is a thirty-year-old male person who lived in Winston-Salem at the time of the injuries complained of. He had known defendant, four or five years. On 24 January 1967 plaintiff encountered defendant at a restaurant in Winston-Salem, and asked defendant to take him for a ride -on defendant\u2019s motorcycle. Plaintiff sat on the back portion of the seat, on what is generally-.known as the \u201cbuddy seat,\u201d which has a little rail around the back for the passenger to hold onto while riding. Plaintiff had ridden on a motorcycle before, but not in the last twelve years or more.\nDefendant drove his motorcycle away from the restaurant with plaintiff riding'as a passenger on the \u201cbuddy seat,\u201d and drove for a mile or more before the accident in question. While riding this mile or more they had to stop for at least one traffic signal, and plaintiff experienced no difficulty in holding on as defendant started from the stopped position. At the intersection of Yargrave Street and Waugh-town Street defendant stopped for a red traffic light. Plaintiff was seated on the \u201cbuddy seat\u201d holding to the rail around the seat with both hands. When the light turned green, defendant \u201ctaken (sic) off, it jumped, and it throwed (sic)\u201d plaintiff backwards off the motorcycle causing the injuries complained of.\nWebster\u2019s Third New International Dictionary (1968) defines take off as \u201cto start off or away, often suddenly.\u201d Therefore, plaintiff\u2019s evidence tends to show that defendant suddenly started his motorcycle forward from a stopped position in such a manner that it jumped forward, throwing the plaintiff backwards and off the motorcycle causing the injuries for which plaintiff seeks to recover damages. We must, therefore, examine the standard of care owed by defendant to plaintiff to determine whether the evidence in this case presents a question for the jury.\nThe common law standard of care required of any person is that degree of care for another\u2019s safety which a reasonably prudent man, under like circumstances, would exercise. 6 Strong, N. C. Index 2d, Negligence, \u00a7 1, p. 3. The standard of care is constant under the above rule, but the degree of care varies with the circumstances. A reasonably prudent man increases his watchfulness as the possibility of danger mounts; therefore, the degree of care required of one whose breach of duty is very likely to result in serious harm is greater than when the effect of such breach is not nearly so great. Thus, the degree \u2014 that is the quantity \u2014 of care necessary to measure up to the standard is as variable as the attendant circumstances. That degree of care which a man of ordinary prudence would exercise under the circumstances may mean nothing more than care not to willfully or wantonly injure, or it may mean \u201cthe utmost degree of care,\u201d \u201cthe highest degree of care,\u201d or \u201cthe greatest degree of care.\u201d The standard of care is a part of the law of the case for the court to explain and apply. The degree of care required, under the particular circumstances, to measure up to the standard is for the jury to decide. Pinyan v. Settle, 263 N.C. 578, 139 S.E. 2d 863; Rea v. Simowitz, 225 N.C. 575, 35 S.E. 2d 871.\nAlthough it is not negligence per se for a motorcyclist to carry a passenger on a seat provided for that purpose, it would seem that while carrying such a passenger a greater degree of care would be required in the operation of the motorcycle than if there were no passenger. 8 Am. Jur. 2d, Automobiles and Highway Traffic, \u00a7 559, p. 114. It is for the jury to determine whether, under the circumstances, the defendant exercised the care of a man of ordinary prudence in the manner in which he started his motorcycle from a stopped position, and whether defendant\u2019s conduct was a proximate cause of plaintiff\u2019s becoming dislodged from the \u201cbuddy seat.\u201d\nDefendant contends that plaintiff was guilty of contributory negligence as a matter of law in looking down at his feet while stopped instead of watching for the traffic signal to turn green, and that the judgment of nonsuit should be sustained on this ground. A judgment of nonsuit on the ground of contributory negligence may be entered only when the plaintiff\u2019s evidence, considered alone and taken in the light most favorable to him, so clearly establishes the defense that no other reasonable inference or conclusion can be drawn therefrom. Warren v. Lewis, 273 N.C. 457, 160 S.E. 2d 305.\nPlaintiff testified: \u201cWe stopped, and I was looking down at my feet to make sure I had my feet back out of his way, and the light turned green and I didn\u2019t see it.\u201d This may require submission of an issue of contributory negligence, but it is for the jury to determine whether plaintiff\u2019s conduct was, or was not, the conduct of a reasonably prudent man -under the circumstances, and whether it was also a proximate cause of his becoming dislodged from the \u201cbuddy seat.\u201d\nIt seems that his honor may have become overly impressed by the contradictions in plaintiff\u2019s evidence, and by the import of defendant\u2019s evidence. These were matters to be resolved by the jury.\nIt follows that we disagree with the trial judge\u2019s ruling, and that the judgment of nonsuit is\nReversed.\nCampbell and MoRRis, JJ., concur.",
        "type": "majority",
        "author": "BROCK, J."
      }
    ],
    "attorneys": [
      "Wilson & Morrow, by John .F. Morrow, for plaintiff appellant. Hudson, Petree, Stockton, Stockton & Robinson, by J. Robert Elster, for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "CHARLEY W. TINDLE v. BOBBIE DAVIS DENNY\nNo. 6921SC58\n(Filed 5 February 1969)\n1. Trial \u00a7 21\u2014 nonsuit \u2014 consideration of evidence\nOn motion to nonsuit, plaintiff\u2019s evidence is to be taken as true and all the evidence considered in tbe light most favorable to plaintiff, giving him the benefit of every fact and inference of fact pertaining to the issues which may be reasonably deduced from the evidence.\n2. Trial \u00a7 21\u2014 nonsuit \u2014 consideration of evidence\nDiscrepancies and contradictions, even in plaintiff\u2019s evidence, are for the jury and not for the court and do not justify a nonsuit.\n3. Trial \u00a7 18\u2014 nonsuit \u2014 function of the court\nOn motion to nonsuit, the function of the court is to determine only whether the facts and circumstances in evidence, considered in the light most favorable to plaintiff, tend to make out and sustain the cause of action alleged in the complaint.\n4. Trial \u00a7 18\u2014 function of the jury\nIt is the function of the jury alone to weigh the evidence, determine the credibility of the witnesses and the probative force to be given their testimony, and determine what the evidence proves or fails to prove.\n5. Trial \u00a7 18\u2014 weight and credibility of evidence\nIn weighing the credibility of the testimony, the jury has the right to believe any part or none of it.\n6. Automobiles \u00a7 92\u2014 motorcycles \u2014 duty to passenger \u2014 negligence \u2014 nonsuit\nPlaintiff\u2019s evidence tending to show that he was riding as a passenger on the \u201cbuddy seat\u201d of defendant\u2019s motorcycle and that defendant suddenly started the motorcycle forward from a stopped position at a traffic signal in such a manner that it jumped forward, throwing plaintiff backwards and off the motorcycle and causing, the injuries complained of, held sufficient to be submitted to the jury on the issue of defendant\u2019s negligence.\n7. Negligence \u00a7 1\u2014 negligence defined\nThe common law standard of care required of any person is that degree of care for another\u2019s safety which a reasonably prudent man, under like circumstances, would exercise; the standard of care is constant under this rule, but the degree of care varies with the circumstances.\n8. Negligence \u00a7 1\u2014 degree of care\nA reasonably prudent man increases his watchfulness as the possibility of danger mounts; therefore, the degree of care required of one whose breach of duty is very likely to result in serious harm is greater than when the effect of such breach is not nearly so great.\n9. Negligence \u00a7 28\u2014 questions of law and of fact\nThe standard of care is a part of tire law of the case for the court to explain and apply; the degree of care required, under the particular circumstances, to measure up to the standard is for the jury to decide.\n10. Automobiles \u00a7 39.5\u2014 motorcycles\nAlthough it is not negligence per se for a motorcyclist to carry a passenger on a seat provided for that purpose, it would seem that a greater degree of care would be required in the operation of the motorcycle than if there were no passenger.\n11. Negligence \u00a7 35\u2014 nonsuit for contributory negligence\nA judgment of nonsuit on the ground of contributory negligence may be entered only when the plaintiff\u2019s evidence, considered alone and taken in the light most favorable to him, so clearly establishes the defense that no other reasonable inference or conclusion can be drawn therefrom.\n12. Automobiles \u00a7 94\u2014 motorcycles \u2014 contributory negligence of passenger\nWhether plaintiff-passenger, who was thrown from the \u201cbuddy seat\u201d of defendant\u2019s motorcycle as it suddenly took off from a stopped position at a traffic signal, was guilty of contributory negligence in looking down at his feet while stopped instead of watching for change in light, held an issue for the jury.\nAppeal by plaintiff from McConnell, J., 16 September 1968 Schedule B Session, FoRSyth Superior Court.\nThis is a civil action to recover damages for personal injury alleged to have proximately resulted from the negligent operation of a motorcycle by defendant.\nFrom judgment of involuntary nonsuit entered at the close of all the evidence, plaintiff appealed.\nWilson & Morrow, by John .F. Morrow, for plaintiff appellant. Hudson, Petree, Stockton, Stockton & Robinson, by J. Robert Elster, for defendant appellee."
  },
  "file_name": "0567-01",
  "first_page_order": 587,
  "last_page_order": 591
}