{
  "id": 8628714,
  "name": "OTTWAY AUSTIN v. THOMAS L. OVERTON",
  "name_abbreviation": "Austin v. Overton",
  "decision_date": "1942-09-30",
  "docket_number": "",
  "first_page": "89",
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    "id": 9292,
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  "last_updated": "2023-07-14T15:48:14.759571+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "OTTWAY AUSTIN v. THOMAS L. OVERTON."
    ],
    "opinions": [
      {
        "text": "Stacy, C. J.\nConceding that under Holland v. Strader, 216 N. C., 436, 5 S. E. (2d), 311, there may be some evidence of the defendant\u2019s negligence, though stressfully controverted by the defendant, still it would seem that plaintiff\u2019s own negligence was the proximate cause of his injury, or one of them. Tarrant v. Bottling Co., 221 N. C., 390; Sibbiti v. Transit Co., 220 N. C., 702, 18 S. E. (2d), 203; Beck v. Hooks, 218 N. C., 105, 10 S. E. (2d), 608. The plaintiff thus proves himself out of court. Godwin v. R. R., 220 N. C., 281, 17 S. E. (2d), 137. It need not appear that his negligence was the sole proximate cause of the injury, as this would exclude any idea of negligence on the part of the defendant. Absher v. Baleigh, 211 N. C., 567, 190 S. E., 897. It is enough if it contribute to the injury. Wright v. Grocery Co., 210 N. C., 462, 187 S. E., 564. The very term \u201ccontributory negligence\u201d ex vi termini implies that it need not be the sole cause of the injury. Fulcher v. Lumber Co., 191 N. C., 408, 132 S. E., 9. The plaintiff may not recover, in an action like the present, when his negligence concurs with the negligence of the defendant in proximately producing the injury. Construction Co. v. R. R., 184 N. C., 179, 113 S. E., 672.\nPlaintiff\u2019s evidence is to the effect that \u201cno lights showed on the rear\u201d of defendant\u2019s car. This, then, put him on notice that he could not rely upon these lights. Miller v. R. R., 220 N. C., 562, 18 S. E. (2d), 232. He followed the defendant\u2019s car for some distance before the collision. He further says that as a part of the res gestee, the defendant remarked, \u201cit was my fault.\u201d Even so, the conclusion is a legal one, determinable alone by the facts. It is not supposed the defendant intended by this statement \u2014 which he denies making \u2014 to concede more than his own negligence. The physical facts speak louder than the witness. Dillon v. Winston-Salem, 221 N. C., 512.\nThe conclusion is inescapable that plaintiff\u2019s negligence contributed to the injury. Pierce v. Seymour, decided herewith, ante, 42; Powers v. Sternberg, 213 N. C., 41, 195 S. E., 88; Davis v. Jeffreys, 197 N. C., 712, 150 S. E., 488. Hence, the judgment of nonsuit will be upheld.\nAffirmed.",
        "type": "majority",
        "author": "Stacy, C. J."
      }
    ],
    "attorneys": [
      "Briggs & Atkins for plaintiff, appellant.",
      "Watson & Fonts for defendant, appellee."
    ],
    "corrections": "",
    "head_matter": "OTTWAY AUSTIN v. THOMAS L. OVERTON.\n(Filed 30 September, 1942.)\n1. Negligence \u00a7\u00a7 5, 11\u2014\nPlaintiff\u2019s negligence need not be tbe sole proximate canse of the injury, as this would exclude any idea of negligence on the part of defendant; it is enough if plaintiff\u2019s negligence contributes to the injury.\n2. Same\u2014\n\u201cContributory negligence\u201d ea\u00a1 vi termini implies that it need not be the sole cause of the injury; and plaintiff cannot recover when his negligence concurs with that of defendant in proximately producing the injury.\n3. Automobiles \u00a7\u00a7 13, 14, 18a, 18c: Negligence \u00a7 19\u2014\nWhere plaintiff was following defendant, both traveling at 45 to 50 miles per hour on a straight, 30-foot concrete road, no lights being on rear of defendant\u2019s car, and defendant slowed down suddenly and turned to the left side of the road, and either stopped or was moving very slowly, when plaintiff\u2019s car violently collided with defendant\u2019s, in an action for damages, plaintiff is guilty of contributory negligence and nonsuit was proper.\nAppeal by plaintiff from Sink, J., at March Term, 1942, of YaNcey.\nCivil action to recover damages for an alleged negligent injury suffered by plaintiff when his automobile ran into the rear of defendant\u2019s car near New Bridge, Buncombe County, on the Asheville-Weaverville Highway.\nOn the morning of 2 August, 1941, around 2 :00 a.m., plaintiff was going from 'W\u2019eaverville to Asheville in his 1941 Ford V-8. The defendant was traveling in the same direction, in front of the plaintiff, driving a Chevrolet Sedan. Their speed was between 45 and 50 miles an hour.\nPlaintiff testifies that at a point where the concrete road was approximately 30 feet wide and practically straight, the defendant, without signal or warning of any kind, pulled his car over to the left of the road and came to a sudden stop; that as a result he, the plaintiff, was unable to stop his vehicle in time to avoid running into the rear of defendant\u2019s ear; that the defendant said on the scene he turned and stopped to avoid hitting a drunken man in the road and \u201cthat it was his fault\u201d; that plaintiff looked and did not see anyone, drunk or sober, in the road.\nThe defendant testified that as he was making a slight left turn he dimmed his lights for an approaching car which failed to dim its lights, and as he switched his lights back on, there appeared a drunken man in the road in front of him; that he immediately applied his brakes, turned to the left and slowed to approximately 25 miles an hour, but did not stop; that in picking up speed he felt the impact of plaintiff\u2019s car, which traveled between 20 and 25 feet after the collision; that the rear of his car was completely demolished \u2014 \u201cthe car was knocked out of line and both lights of the front were damaged by the twist of the impact. . . . I never said the collision was my fault.\u201d\nFrom judgment of nonsuit entered on consideration of all the evidence, the plaintiff appeals, assigning error.\nBriggs & Atkins for plaintiff, appellant.\nWatson & Fonts for defendant, appellee."
  },
  "file_name": "0089-01",
  "first_page_order": 133,
  "last_page_order": 134
}