{
  "id": 8624526,
  "name": "HARVEY LEE LEONARD v. HERMAN GARNER and WILLIAM PHILO ELLIOTT",
  "name_abbreviation": "Leonard v. Garner",
  "decision_date": "1960-11-02",
  "docket_number": "",
  "first_page": "278",
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    "name": "Supreme Court of North Carolina"
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      "cite": "251 N.C. 33",
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  "last_updated": "2023-07-14T21:02:38.064481+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "HARVEY LEE LEONARD v. HERMAN GARNER and WILLIAM PHILO ELLIOTT."
    ],
    "opinions": [
      {
        "text": "Bobbitt, J.\nWhether the evidence, when considered in the light most favorable to plaintiff, was sufficient to require submission of the case to the jury, is the only question for decision.\nIt was stipulated that the collision \u201coccurred within the residential area of the city of Lexington.\u201d\nThere was evidence tending to show: In approaching and entering the intersection, defendants\u2019 truck traveled north on Salisbury Street and plaintiff\u2019s car traveled east on Fourth Street. A stop sign was located on the south side of Fourth Street, sixteen feet and six inches' back (west) from the intersection. Plaintiff stopped \u201cjust past the Stop sign,\u201d between- the stop sign and the intersection, \u201cabout'5 or 6 feet from the intersection.\u201d He could then see \u201caround 400 feet of -North Salisbury -Street to the south and to the north . -. . about 800 to 400 feet.\u201d He looked both ways, saw that Salisbury Street was clear of traffic, then started and was proceeding -slowly across Salisbury Street \u201cat about 8 or 10 miles an hour.\u201d The front of defendants\u2019 truck struck the right side of plaintiff\u2019s car. The front of plaintiff\u2019s car was then in the \u201ceast third of the east side of Salisbury Street.\u201d\nAs to the alleged negligence of defendants, there was evidence tending to show: Elliott, the driver of the truck, first saw plaintiff\u2019s car when it had reached the center of Salisbury Street. He then applied his brakes and \u201cslid\u201d into plaintiff\u2019s car. The truck, after skidding 42 feet, struck plaintiff\u2019s car with sufficient- force to knock it some 20 to 25 feet through the air. During the 50-60 feet before the impact, the speed of the truck was \u201c40 to 45 miles per hour.\u201d\nThere was ample evidence to support a finding as to defendants\u2019 alleged negligence. Even so, defendants insist plaintiff\u2019s testimony discloses contributory negligence as a matter of law.\nJudgment of involuntary nonsuit on the ground of contributory negligence should be granted when, but only when, the evidence taken in the light most favorable to plaintiff, establishes plaintiff\u2019s contributory negligence so clearly that no other reasonable inference or conclusion may be drawn therefrom. Discrepancies and contradictions in the evidence, even though such occur in the evidence offered in behalf of plaintiff, are to be resolved by the jury, not by the court. Stathopoulos v. Shook, 251 N.C. 33, 36, 110 S.E. 2d 452, and cases cited.\nTested by these well established rules, we are of opinion, and so hold, that the issue of contributory negligence, upon the evidence presented, was for determination by the jury. The factual situation in Matheny v. Motor Lines, 233 N.C. 673, 65 S.E. 2d 361, cited and stressed by defendants, is materially different from that here considered. Applying the rules stated in Matheny, and considering the evidence in the light most favorable to plaintiff, whether plaintiff, when he started his car and proceeded into said intersection, had reasonable ground for the belief that he could cross in safety, was for jury determination. Also, whether plaintiff thereafter, by the exercise of due care, should have seen the approach of defendants\u2019 truck and that it was not going to slow clown to permit him to complete the crossing at a time when plaintiff, by the exercise of due care, could have avoided the collision, was for jury determination. Statho-poulos v. Shook, supra, p. 37, and cases there cited.\nHaving reached the conclusion that the judgment of involuntary nonsuit should be reversed, we deem it appropriate to refrain from further discussion of the evidence presently before us. Tucker v. Moorefield, 250 N.C. 340, 342, 108 S.E. 2d 637, and cases cited.\nReversed.",
        "type": "majority",
        "author": "Bobbitt, J."
      }
    ],
    "attorneys": [
      "Stoner \u25a0& Wilson and Robert L. Grubb for plaintiff, appellant.",
      "Walser <& Brinkley for defendants, appellees."
    ],
    "corrections": "",
    "head_matter": "HARVEY LEE LEONARD v. HERMAN GARNER and WILLIAM PHILO ELLIOTT.\n(Filed 2 November, 1960.)\n1. Negligence \u00a7 26\u2014\nNonsuit on tbe ground of contributory negligence is proper-.only when the evidence taken in the light most favorable to plaintiff establishes plaintiff\u2019s contributory negligence so clearly that no other reaspn\u00e1ble inference may be drawn therefrom.\n2. Trial \u00a7 22c\u2014\nContradictions and discrepancies, even in plaintiff\u2019s own evidence, are for the jury to resolve and do not warrant nonsuit.\n3. Automobiles \u00a7 42g\u2014\nEvidence tending to show that plaintiff, traveling along the servient highway, stopped before entering intersection, saw no traffic approaching, and was over half way across the intersection when struck by defendant\u2019s truck traveling at excessive speed, is held insufficient to establish contributory negligence on the part of plaintiff as a matter of law, since whether plaintiff had reasonable ground for belief that he,could cross in safety, and whether he could have seen and apprehended in time to have avoided the collision that defendant\u2019s vehicle was not going to stop, are questions for the jury upon the evidence.\nAppeal by plaintiff from Johnston, April Civil Term, 1960, of DAVIDSON.\nPlaintiff's action is to recover damages for personal injuries' and property damage res\u00falting from a collision that occurred! October 3, 1959, about 9:00 a.m., at the intersection of North Salisbury and East Fourth Streets in Lexington, North Carolina, between a 1948 Chevrolet automobile owned and operated by plaintiff and a 1958 Chevrolet truck owned by Herman Garner and operated by William Philo Elliott.\nPlaintiff alleged the collision was caused by the negligence of Elliott while operating the truck as agent for Garner. Defendants, in a joint answer, admitted that Garner\u2019s truck, while operated by Elliott, collided with plaintiff\u2019s Chevrolet at said intersection, but denied the collision was caused by the negligence of Elliott and denied that Elliott was operating the truck as agent for Garner. For a further defense, defendants pleaded the contributory negligence of plaintiff in bar of his right to recover.\nAt the conclusion of plaintiff\u2019s evidence, judgment of involuntary nonsuit, dismissing the action and taxing plaintiff with the costs, was entered. Plaintiff excepted and appealed.\nStoner \u25a0& Wilson and Robert L. Grubb for plaintiff, appellant.\nWalser <& Brinkley for defendants, appellees."
  },
  "file_name": "0278-01",
  "first_page_order": 318,
  "last_page_order": 320
}