{
  "id": 8628698,
  "name": "MRS. HELEN CHESSER v. MRS. SUE C. McCALL",
  "name_abbreviation": "Chesser v. McCall",
  "decision_date": "1949-03-09",
  "docket_number": "",
  "first_page": "119",
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    "id": 9292,
    "name": "Supreme Court of North Carolina"
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  "last_updated": "2023-07-14T15:28:13.210119+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "MRS. HELEN CHESSER v. MRS. SUE C. McCALL."
    ],
    "opinions": [
      {
        "text": "DeviN, J.\nThe appeal from the judgment of involuntary nonsuit presents the question whether the plaintiff\u2019s evidence considered in the light most favorable for her was sufficient to carry the case to the jury.\nWe think it was, and that the judgment of nonsuit was improvidently entered. This view is supported by the decision in Jernigan v. Jernigan, 207 N.C. 851, 175 S.E. 713, where on similar facts nonsuit was reversed. The credibility of the testimony was for the jury. Barlow v. Bus Lines, 229 N.C. 382, 49 S.E. 2d 793. The plaintiff\u2019s evidence does not disclose such an emergency as would relieve the defendant\u2019s action altogether of the imputation of negligence. Sparks v. Willis, 228 N.C. 25, 44 S.E. 2d 343; Hoke v. Greyhound Corp., 227 N.C. 412, 42 S.E. 2d 593. Nor under her testimony may the plaintiff\u2019s action be dismissed on the ground of contributory negligence. Lincoln v. R. R., 207 N.C. 787, 178 S.E. 601. Bogen v. Bogen, 220 N.C. 648, 18 S.E. 2d 162, is inapplicable, here. While defendant\u2019s evidence tended to discredit plaintiff\u2019s case, on motion for nonsuit this evidence is not to be taken into consideration unless favorable to the plaintiff \u201cexcept, when not in conflict with plaintiff\u2019s evidence, it may be used to explain or make clear that which has been offered by the plaintiff.\u201d Harrison v. R. R., 194 N.C. 656, 140 S.E. 598; Gregory v. Ins. Co., 223 N.C. 124, 25 S.E. 2d 398.\nThe judgment of nonsuit is\nEeversed.",
        "type": "majority",
        "author": "DeviN, J."
      }
    ],
    "attorneys": [
      "James S. Howell and Oscar Stanton for plaintiff, appellant.",
      "Williams & Williams for defendant, appellee."
    ],
    "corrections": "",
    "head_matter": "MRS. HELEN CHESSER v. MRS. SUE C. McCALL.\n(Filed 9 March, 1949.)\n1. Automobiles \u00a7\u00a7 8j, 18h (2), 18h (3) \u2014\nPlaintiffs evidence tended to show that she was driving on a trip with defendant in defendant\u2019s car, that upon the ear skidding to a hardly perceptible degree, defendant became excited and grabbed the wheel, pulling the car to the right and causing it to crash into a tree. Held,: Plaintiffs evidence does not disclose such an emergency as to relieve defendant\u2019s action altogether of the imputation of negligence, and the issues of negligence and contributory negligence should have been submitted to the jury, and nonsuit was error.\n2. Trial \u00a7 221b\u2014\nOn motion to nonsuit, defendant\u2019s evidence which tends to discredit plaintiff\u2019s case is not to be considered.\nAppeal by plaintiff from Nettles, J.', December Term, 1948, of BuNcombe.\nReversed.\nThis was a suit for damages for a personal injury alleged to bave been due to the negligent action of the defendant.\nIt appeared from plaintiff\u2019s testimony that on the occasion alleged plaintiff and defendant were proceeding in defendant\u2019s automobile from Winston-Salem to Asheville. It had been raining and a light rain was falling. Near Hickory the defendant, who had theretofore been driving, became tired and asked plaintiff to drive. While plaintiff was driving, at the rate of about 25 miles per hour, on the right side of the highway, according to her testimony, \u201cthere was a slight skid, hardly noticeable, and she (defendant) reached over and grabbed the wheel, pulling the car to the right, and we crashed into the tree. Both my hands were on the steering wheel. I can\u2019t say how far the car went before it hit the tree but a very little distance off the highway. . . . For some reason Mrs. McCall became excited and reached over and grabbed the wheel and took control of it away from me.\u201d Plaintiff sustained injury in consequence.\nThe defendant offered evidence tending to show both plaintiff and defendant were observed after the accident to be under the influence of intoxicating liquor, and that plaintiff had not at first claimed defendant caught hold of the steering wheel. The defendant herself did not testify. On the other hand, the plaintiff testified in rebuttal: \u201cI had not had any alcoholic beverages to drink on the da.y in question. Mrs. McCall had drunk a couple of beers.\u201d She denied making any statement which differed from her testimony at the trial.\nAt the close of all the evidence, the defendant\u2019s renewed motion for judgment of nonsuit was allowed, and plaintiff appealed.\nJames S. Howell and Oscar Stanton for plaintiff, appellant.\nWilliams & Williams for defendant, appellee."
  },
  "file_name": "0119-01",
  "first_page_order": 175,
  "last_page_order": 177
}