{ "id": 8611211, "name": "GERALD RUFUS WILLIAMS v. ROBERT HUBERT KIRKMAN", "name_abbreviation": "Williams v. Kirkman", "decision_date": "1950-11-08", "docket_number": "", "first_page": "609", "last_page": "611", "citations": [ { "type": "official", "cite": "232 N.C. 609" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "197 S.E. 146", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "213 N.C. 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629400 ], "opinion_index": 0, "case_paths": [ "/nc/213/0569-01" ] }, { "cite": "2 S.E. 2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "215 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630886 ], "opinion_index": 0, "case_paths": [ "/nc/215/0577-01" ] }, { "cite": "101 S.E. 555", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "179 N.C. 112", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655130 ], "opinion_index": 0, "case_paths": [ "/nc/179/0112-01" ] }, { "cite": "71 S.E. 86", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "155 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651815 ], "opinion_index": 0, "case_paths": [ "/nc/155/0090-01" ] }, { "cite": "46 S.E. 2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627237 ], "opinion_index": 0, "case_paths": [ "/nc/228/0532-01" ] }, { "cite": "57 S.E. 2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "231 N.C. 420", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630190 ], "opinion_index": 0, "case_paths": [ "/nc/231/0420-01" ] }, { "cite": "178 S.E. 601", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "207 N.C. 787", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628584 ], "opinion_index": 0, "case_paths": [ "/nc/207/0787-01" ] }, { "cite": "37 S.E. 2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "226 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "49 S.E. 2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "229 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12166144 ], "opinion_index": 0, "case_paths": [ "/nc/229/0382-01" ] }, { "cite": "189 S.E. 631", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624992 ], "opinion_index": 0, "case_paths": [ "/nc/211/0129-01" ] }, { "cite": "51 S.E. 2d 307", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "229 N.C. 707", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12167679 ], "opinion_index": 0, "case_paths": [ "/nc/229/0707-01" ] }, { "cite": "52 S.E. 2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629509 ], "opinion_index": 0, "case_paths": [ "/nc/230/0269-01" ] }, { "cite": "57 S.E. 2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "231 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630033 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/231/0404-01" ] } ], "analysis": { "cardinality": 438, "char_count": 6878, "ocr_confidence": 0.484, "pagerank": { "raw": 7.682524327565528e-08, "percentile": 0.45295884045749385 }, "sha256": "65f0291b4d00d0f8dc0f818fba627732eaaaabd4ca34e82543b218e392e2c4ec", "simhash": "1:a2a764967eda08d9", "word_count": 1190 }, "last_updated": "2023-07-14T20:42:59.145817+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GERALD RUFUS WILLIAMS v. ROBERT HUBERT KIRKMAN." ], "opinions": [ { "text": "Staoy, C. J.\nThe question for decision is whether the evidence making for plaintiff\u2019s cause survives the demurrer, carries the case to the jury and suffices to support the verdict. The trial court answered in the affirmative and we approve.\nThe evidence readily permits an inference of excessive speed and reckless driving on the part of the defendant. This was in violation of law and calls for a jury verdict, unless the plaintiff\u2019s own evidence establishes his contributory negligence as a matter of law. The trial court was of opinion that it did not and that the issue was one for the twelve. We agree. Bailey v. Michael, 231 N.C. 404, 57 S.E. 2d 372; Gladden v. Setzer, 230 N.C. 269, 52 S.E. 2d 804; Bundy v. Powell, 229 N.C. 707, 51 S.E. 2d 307; Hancock v. Wilson, 211 N.C. 129, 189 S.E. 631.\nThere is evidence to the effect that the defendant approached the point of collision at a negligent rate of speed; that he saw the plaintiff peddling his bicycle towards the intersection at a fast pace when he, the plaintiff, was yet 50 feet away, and that the defendant by reason of his own speed \u2014 he then being from 50 to 75 feet above the intersection\u2014 was unable to avoid the collision, albeit he applied his brakes immediately upon noticing the plaintiff. \u201cWhen I saw him,\u201d the defendant says, \u201cI hit my brakes because he was coming fast.\u201d And yet the defendant says he was traveling only 40 to 45 miles an hour. How fast was he going? The witnesses do not agree. The jury alone may answer.\nConceding the sufficiency of defendant\u2019s evidence to support a finding of contributory negligence on the part of the plaintiff, still this is the defendant\u2019s evidence to be considered by the jury on the issue, but not by the court on a motion for judgment as in case of nonsuit. Bailey v. Michael, supra; Barlow v. Bus Line, 229 N.C. 382, 49 S.E. 2d 793; Phillips v. Nessmith, 226 N.C. 174, 37 S.E. 2d 178; Lincoln v. R. R., 207 N.C. 787, 178 S.E. 601.\nIt is only when the plaintiff proves himself out of court that a judgment of nonsuit may be entered on the issue of contributory negligence. Bailey v. Michael, supra; Howard v. Bingham, 231 N.C. 420, 57 S.E. 2d 401. When the plaintiff goes upon the witness-stand he necessarily subjects himself to cross-examination, and here is where his admissions may be fatal to his case. But even then, mere discrepancies or contradictions in his evidence will not take the case from the jury. Bailey v. Michael, supra; Emery v. Ins. Co., 228 N.C. 532, 46 S.E. 2d 309; Shell v. Roseman, 155 N.C. 90, 71 S.E. 86. He must show or reveal, without opposing inference, that he was eontributorily negligent. Speaking to the point in Battle v. Cleave, 179 N.C. 112, 101 S.E. 555, Hoke, J., with his usual clarity and accuracy of statement, put it this way: \u201cThe burden of showing contributory negligence, however, is on the defendant, and the motion for nonsuit may never be allowed on such an issue where the controlling and pertinent facts are in dispute, nor where opposing inf\u00e9r-ences are permissible from plaintiff\u2019s proof, nor where it is necessary in support of the motion to rely, in whole or in part, on evidence offered for the defense.\u201d Bailey v. Michael, 231 N.C. 404, 57 S.E. 2d 372; Templeton v. Kelley, 215 N.C. 577, 2 S.E. 2d 696; Ferguson v. Asheville, 213 N.C. 569, 197 S.E. 146.\nThis is the only question presented by the appeal. As the ruling below is approved, the verdict and judgment will be upheld.\nNo error.", "type": "majority", "author": "Staoy, C. J." } ], "attorneys": [ "Ottway Burton for plaintiff, appellee. \u25a0", "Spence, Smith & Walker for defendant, appellant." ], "corrections": "", "head_matter": "GERALD RUFUS WILLIAMS v. ROBERT HUBERT KIRKMAN.\n(Filed 8 November, 1950.)\n1. Automobiles \u00a7\u00a7 15, 18h (3) \u2014\nPlaintiff\u2019s evidence to the effect that defendant, who was traveling on a hard surface highway, approached an intersection with a dirt road at excessive speed and collided with the bicycle ridden by plaintiff as it entered the intersection from the dirt road, is held, not to establish contributory negligence as a matter of law on the part of plaintiff and nonsuit on that ground was properly denied, notwithstanding conflicting evidence introduced by defendant or even contradictions and discrepancies in plaintiff\u2019s own evidence.\n2. Negligence \u00a7 19c\u2014\nPlaintiff\u2019s own evidence must show contributory negligence without opposing inferences in order to justify nonsuit on this ground, since defendant\u2019s evidence upon the issue is not to be considered in passing upon the question and contradictions and discrepancies in plaintiff\u2019s own evidence do not justify nonsuit.\n3. Trial \u00a7 22c\u2014\nDiscrepancies or contradictions in plaintiff\u2019s own evidence do not justify nonsuit.\nAppeal by defendant from Bobbitt, J., March Term, 1950, of EaN-dolph.\nCivil action to recover damages for personal injuries sustained in a collision between plaintiff\u2019s bicycle and defendant\u2019s automobile allegedly caused by the negligence of the defendant.\nThe transcript reveals that plaintiff and defendant are both residents of Eandolph County. In the late afternoon of 11 May, 1949, the plaintiff, a boy 17 years of age, was delivering papers with his bicycle (apparently on the outskirts of High Point, though this is not clear from the record). He was riding on a dirt road which intersects with the paved highway known as the \u201cOld Thomasville Eoad,\u201d and collided with the defendant\u2019s 1946 Mercury Coupe within this intersection.\nThe defendant had been to High Point and was traveling southward- on the \u201cOld Thomasville Eoad\u201d or Highway, presumably going to his home in Eandolph County, ana was \u201cmaking not less than 70\u201d miles an hour according to one of plaintiff\u2019s witnesses who observed the car 250 feet north of the intersection. She further stated, \u201calmost the second I saw the' car I heard the brakes begin to screech.\u201d There is also evidence that 350 yards north of the intersection the defendant was \u201cdriving very fast.\u201d\nThe skid marks on the hard surface indicated that defendant\u2019s car was from 2% to 3 feet over the center of the highway \u201cabout 50 to 70 feet from where he hit the boy.\u201d\nThe defendant, on the other hand, testified that he was traveling between 40 and 45 miles an hour; that there was a lot of shrubbery on the left side of the road; that he saw the top of the boy\u2019s head when the boy was about 50 feet from the intersection, \u201cand saw that he was running fast. ... I was then about 50 feet back from this road . . . or 75 feet further up. ... I slowed straight to the ditch, just as he came out of the road into the side of the car. . . . He came in too fast. . . . His front wheel came straight into my front wheel on the left side.\u201d\nThe jury answered the issue of negligence and contributory negligence in plaintiff\u2019s favor and awarded him damages in the sum of $1,000.00.\nFrom judgment on the verdict, the defendant appeals, assigning error in the refusal of the court to dismiss the action as in case of nonsuit.\nOttway Burton for plaintiff, appellee. \u25a0\nSpence, Smith & Walker for defendant, appellant." }, "file_name": "0609-01", "first_page_order": 657, "last_page_order": 659 }