{
  "id": 8615509,
  "name": "LUTHER PHILLIPS v. BERTHA B. NESSMITH",
  "name_abbreviation": "Phillips v. Nessmith",
  "decision_date": "1946-03-06",
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  "first_page": "173",
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  "last_updated": "2023-07-14T21:52:42.041183+00:00",
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  "casebody": {
    "judges": [
      "Barnhill, J., dissents."
    ],
    "parties": [
      "LUTHER PHILLIPS v. BERTHA B. NESSMITH."
    ],
    "opinions": [
      {
        "text": "Stacy, C. J.\nThe plaintiff\u2019s testimony is sufficient to carry the case to the jury on the issue of defendant\u2019s alleged negligence. Wall v. Bain, 222 N. C., 375, 23 S. E. (2d), 330; Lincoln v. R. R., 207 N. C., 787, 178 S. E., 601. Accordingly, her demurrer to the evidence was properly overruled. Henson v. Wilson, 225 N. C., 417, 35 S. E. (2d), 245. But we think there was error in the court\u2019s refusal to submit the issue of plaintiff\u2019s alleged contributory negligence to the jury. On this issue, the evidence is inharmonious. The defendant\u2019s testimony makes it a matter for the twelve. Liske v. Walton, 198 N. C., 741, 153 S. E., 318. \u201cThe rule applicable in cases of this kind is, that if diverse inferences may reasonably be drawn from the evidence, some favorable to the plaintiff and others to the defendant, the cause should be submitted to the jury for final determination.\u201d Hobbs v. Mann, 199 N. C., 532, 155 S. E., 163. The \u201cmore than a scintilla\u201d rule of evidence applies equally to the issues of negligence and contributory negligence. Sebastian v. Motor Lines, 213 N. C., 770, 197 S. E., 539; Pearson v. Luther, 212 N. C., 412, 193 S. E., 739; Moseley v. R. R., 197 N. C., 628, 150 S. E., 184; Moore v. Iron Works, 183 N. C., 438, 111 S. E., 776.\nThere was error in refusing to allow the jury to consider the issue of contributory negligence, which entitles the defendant to another hearing.\nNew trial.\nBarnhill, J., dissents.",
        "type": "majority",
        "author": "Stacy, C. J."
      }
    ],
    "attorneys": [
      "No counsel for plaintiff.",
      "M. R. McGown for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "LUTHER PHILLIPS v. BERTHA B. NESSMITH.\n(Filed 6 March, 1946.)\n1. Automobiles \u00a7 8e, 18h (2) \u2014\nPlaintiff\u2019s testimony that he was driving on the right side of the street with his lights burning, when defendant\u2019s truck, which had been parked at the curb, \u201cbacked out with speed\u201d and hit plaintiff\u2019s car, is held sufficient to carry the case to the jury on the issue of negligence.\n2. Automobiles \u00a7 18j\u2014\nDefendant\u2019s testimony was to the effect that she was backing her truck from the curb where it had been parked, that her lights, front and rear, were burning, and that she was looking backward the while, when her truck struck plaintiff\u2019s car, and that after the impact she saw plaintiff! turn on his lights, and that there was nothing to obstruct the view of either driver, but that she did not see plaintiff\u2019s car before the collision. Plaintiff testified his lights were burning throughout. Held,: It was error for the court to refuse to submit the issue of contributory negligence.\n3. Negligence \u00a7 21\u2014\nThe \u201cmore than a scintilla\u201d rule of evidence applies equally to the issues of negligence and contributory negligence, and if diverse inferences may reasonably be drawn from the evidence upon the issue of contributory negligence, some favorable to plaintiff and some favorable to defendant, the issue must be submitted to the jury.\nBakni-iill, J., dissents.\nAppeal by defendant from Phillips, J., at August-September Term, 1945, of Polk.\nCivil \u00e1ction for damages to plaintiff\u2019s automobile alleged to Have been caused by the negligence of the defendant in backing her truck into the side of plaintiff\u2019s car.\nOn the night of 11 December, 1944, plaintiff was driving his 1937 Ford V-8 along the main street in Tryon, returning from the hospital where he had taken a prisoner. He says he was on his right side of the street, which was about 30 feet wide, with his lights burning, when the defendant\u2019s truck, which had been parked in front of the Rock Grill, \u201cbacked out with speed and hit me\u201d; i.e., hit my ear, tore off the back fender and otherwise damaged it.\nThe defendant denied liability and pleaded contributory negligence. She says: \u201cI had come out of the Rock Grill, got in the car and started backing out slowly. ... Was looking backward as I backed out. . . . I had my lights on both rear and front. ... I did not see Mr. Phillips\u2019 automobile. . . . There was nothing to keep me from seeing up and down the street. . . . Something hit. ... I saw Mr. Phillips then and he turned his lights on. . . . His lights were off when I stopped. They came on. ... At the time I stopped my car I don\u2019t think I was quite to the center of the street. I examined the dirt knocked from the cars and most of it was on my side of the street. . . . There was nothing to obstruct Mr. Phillips\u2019 view.\u201d\nThe case was submitted to the jury on the issue of negligence. The court declined to submit an issue on the plaintiff\u2019s alleged contributory negligence. Exception. The jury answered the issue of negligence in favor of the plaintiff and assessed his damages at $40.\nFrom judgment on the verdict, the defendant appealed, assigning errors.\nNo counsel for plaintiff.\nM. R. McGown for defendant, appellant."
  },
  "file_name": "0173-01",
  "first_page_order": 221,
  "last_page_order": 223
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