{ "id": 8558783, "name": "MAGGIE A. BOWEN v. DANNY CLIFTON GARDNER, Appearing Herein by his Guardian Ad Litem, MILDRED D. GARDNER, and JAMES GARDNER", "name_abbreviation": "Bowen v. Gardner ex rel. Gardner", "decision_date": "1969-06-18", "docket_number": "No. 35", "first_page": "363", "last_page": "370", "citations": [ { "type": "official", "cite": "275 N.C. 363" } ], "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": "165 S.E. 2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "3 N.C. App. 529", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555738 ], "opinion_index": -1, "case_paths": [ "/nc-app/3/0529-01" ] }, { "cite": "158 S.E. 2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "272 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573457 ], "opinion_index": 0, "case_paths": [ "/nc/272/0477-01" ] }, { "cite": "81 S.E. 2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "240 N.C. 217", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596709 ], "opinion_index": 0, "case_paths": [ "/nc/240/0217-01" ] }, { "cite": "75 S.E. 2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "237 N.C. 471", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614117 ], "opinion_index": 0, "case_paths": [ "/nc/237/0471-01" ] }, { "cite": "85 S.E. 2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611586 ], "opinion_index": 0, "case_paths": [ "/nc/241/0412-01" ] }, { "cite": "136 S.E. 2d 214", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "262 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565425 ], "opinion_index": 0, "case_paths": [ "/nc/262/0062-01" ] }, { "cite": "157 S.E. 2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "271 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566573 ], "opinion_index": 0, "case_paths": [ "/nc/271/0690-01" ] }, { "cite": "160 S.E. 2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "273 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575569 ], "opinion_index": 0, "case_paths": [ "/nc/273/0457-01" ] }, { "cite": "114 S.E. 2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "252 N.C. 706", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625500 ], "opinion_index": 0, "case_paths": [ "/nc/252/0706-01" ] }, { "cite": "107 S.E. 2d 544", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "249 N.C. 712", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621385 ], "opinion_index": 0, "case_paths": [ "/nc/249/0712-01" ] }, { "cite": "18 S.E. 2d 239", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "220 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11306824 ], "opinion_index": 0, "case_paths": [ "/nc/220/0573-01" ] }, { "cite": "144 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "265 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575249 ], "opinion_index": 0, "case_paths": [ "/nc/265/0334-01" ] }, { "cite": "144 S.E. 2d 31", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "265 N.C. 389", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575449 ], "opinion_index": 0, "case_paths": [ "/nc/265/0389-01" ] }, { "cite": "144 S.E. 2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "265 N.C. 696", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576822 ], "opinion_index": 0, "case_paths": [ "/nc/265/0696-01" ] }, { "cite": "151 S.E. 2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "268 N.C. 518", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563439 ], "opinion_index": 0, "case_paths": [ "/nc/268/0518-01" ] }, { "cite": "114 S.E. 2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "252 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624199 ], "opinion_index": 0, "case_paths": [ "/nc/252/0520-01" ] }, { "cite": "144 S.E. 2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "265 N.C. 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575019 ], "opinion_index": 0, "case_paths": [ "/nc/265/0269-01" ] }, { "cite": "153 S.E. 2d 333", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "269 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565772 ], "opinion_index": 0, "case_paths": [ "/nc/269/0689-01" ] }, { "cite": "158 S.E. 2d 607", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "272 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573200 ], "opinion_index": 0, "case_paths": [ "/nc/272/0426-01" ] }, { "cite": "91 S.E. 2d 891", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 708", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627008 ], "opinion_index": 0, "case_paths": [ "/nc/243/0708-01" ] }, { "cite": "72 S.E. 2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 203", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623936 ], "opinion_index": 0, "case_paths": [ "/nc/236/0203-01" ] }, { "cite": "74 S.E. 2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "336" } ], "opinion_index": 0 }, { "cite": "237 N.C. 136", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606421 ], "pin_cites": [ { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/nc/237/0136-01" ] }, { "cite": "148 S.E. 2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "267 N.C. 722", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560579 ], "opinion_index": 0, "case_paths": [ "/nc/267/0722-01" ] }, { "cite": "110 S.E. 2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "250 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625672 ], "opinion_index": 0, "case_paths": [ "/nc/250/0657-01" ] }, { "cite": "123 S.E. 2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "256 N.C. 265", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572434 ], "opinion_index": 0, "case_paths": [ "/nc/256/0265-01" ] }, { "cite": "124 S.E. 2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "256 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573476 ], "opinion_index": 0, "case_paths": [ "/nc/256/0483-01" ] }, { "cite": "23 S.E. 2d 330", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "333" } ], "opinion_index": 0 }, { "cite": "222 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630446 ], "weight": 2, "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/nc/222/0375-01" ] }, { "cite": "133 S.E. 2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "260 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575817 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/260/0647-01" ] }, { "cite": "121 S.E. 2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "255 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570562 ], "opinion_index": 0, "case_paths": [ "/nc/255/0494-01" ] }, { "cite": "140 S.E. 2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "264 N.C. 58", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570521 ], "opinion_index": 0, "case_paths": [ "/nc/264/0058-01" ] }, { "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": "131 S.E. 2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "260 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573075 ], "opinion_index": 0, "case_paths": [ "/nc/260/0092-01" ] }, { "cite": "132 S.E. 2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "260 N.C. 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574107 ], "opinion_index": 0, "case_paths": [ "/nc/260/0251-01" ] }, { "cite": "134 S.E. 2d 199", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "261 N.C. 143", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572174 ], "opinion_index": 0, "case_paths": [ "/nc/261/0143-01" ] }, { "cite": "159 S.E. 2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "273 N.C. 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574512 ], "opinion_index": 0, "case_paths": [ "/nc/273/0084-01" ] } ], "analysis": { "cardinality": 851, "char_count": 18694, "ocr_confidence": 0.577, "pagerank": { "raw": 1.5377685317700108e-06, "percentile": 0.9921169149243836 }, "sha256": "12d4c987dd392baa5af5d122691f2eb26438a1cc9a0b48437e29ee1d2846be57", "simhash": "1:16244461240d944c", "word_count": 3260 }, "last_updated": "2023-07-14T18:50:20.593891+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Lake, J., took no part in the consideration or decision of this case." ], "parties": [ "MAGGIE A. BOWEN v. DANNY CLIFTON GARDNER, Appearing Herein by his Guardian Ad Litem, MILDRED D. GARDNER, and JAMES GARDNER" ], "opinions": [ { "text": "HusKins, J.\nDid the Court of Appeals err in sustaining the judgment of non-suit? The answer lies in application of established rules governing motions for nonsuit. These rules may be enumerated as follows:\n1. All the evidence which tends to support plaintiff\u2019s claim must be taken as true and considered in its light most favorable to plaintiff, giving her the benefit of every reasonable inference which legitimately may be drawn therefrom. Homes, Inc. v. Bryson, 273 N.C. 84, 159 S.E. 2d 329.\n2. . Contradictions, conflicts and inconsistencies are resolved in plaintiff\u2019s favor. Watt v. Crews, 261 N.C. 143, 134 S.E. 2d 199; Nixon v. Nixon, 260 N.C. 251, 132 S.E. 2d 590; Smith v. Corsat, 260 N.C. 92, 131 S.E. 2d 894.\n3. Defendants\u2019 evidence which contradicts that of the plaintiff, or tends to show a different state of facts is disregarded. Bundy v. Powell, 229 N.C. 707, 51 S.E. 2d 307; R. R. v. Woltz, 264 N.C. 58, 140 S.E. 2d 738; Eason v. Grimsley, 255 N.C. 494, 121 S.E. 2d 885. Only that part of it which is favorable to plaintiff can be considered. Rosser v. Smith, 260 N.C. 647, 133 S.E. 2d 499; Wall v. Bain, 222 N.C. 375, 23 S.E. 2d 330.\n4. Acts of contributory negligence not alleged in the answer should be ignored. Maynor v. Pressley, 256 N.C. 483, 124 S.E. 2d 162; Rodgers v. Thompson, 256 N.C. 265, 123 S.E. 2d 785; Skinner v. Jernigan, 250 N.C. 657, 110 S.E. 2d 301.\n5. When opposing inferences are permissible from plaintiff\u2019s evidence, nonsuit on the basis of contributory negligence as a matter of law should be denied. Atwood v. Holland, 267 N.C. 722, 148 S.E. 2d 851. See 6 N.C. Index 2d, Negligence, Sec. 35.\nPlaintiff\u2019s evidence in its light most favorable to her, when subjected to these rules, would permit a jury to find the following facts:\nIn the City of Wilson, Downing Street runs north and south while Jordan Street runs east and west. Downing Street is thirty-two feet wide with a paved sidewalk on each side. Jordan Street is approximately the same width but has no paved sidewalks. These two streets intersect at right angles. The intersection is well lighted by a large overhead street lamp but has no traffic control signal. A view of the intersection looking north and south along Downing Street is unobstructed for 300 to 400 feet. Plaintiff, a 72-year-old woman, lived with Mrs. Etta Tyson whose home was located in the southeast corner of said intersection. On 15 November 1966 about 7:50 p.m., immediately before plaintiff\u2019s injury, several ladies had met at Mrs. Tyson\u2019s house to go from there to a Sunday school class meeting. Plaintiff intended to go with them. One of the class members drove her car by Mrs. Tyson\u2019s house to pick them up. The car stopped close to the curb beside the Tyson house and on the left side of Jordan Street facing Downing Street. When the car was loaded, there was no room for plaintiff, and she decided to go across Downing Street and stay with her friend Mrs. Morey, whose house was on the southwest corner of the intersection, until Mrs. Tyson returned. At that time she was standing in a grassy area (where a sidewalk would have been had there been one) on the south side of Jordan Street. When she left her friends in the car, she was on \u201cwhat you would call the sidewalk going to the corner.\u201d Before stepping off the curb at the corner, she looked both ways to see if the way was clear. She didn\u2019t see anything and started walking straight across Downing Street. Meanwhile, defendant Danny Clifton Gardner had stopped at a filling station a block away. He left there on his motorcycle riding south on Downing Street and had accelerated his speed to 30 miles per hour. There was no other traffic and the street was straight, level and dry. The weather was clear and cold. His headlight was on low beam and would render clearly visible a person ahead of him for a distance of about 100 feet. He failed to see plaintiff until he was within 20 feet of her. At that time she was in the center of Downing Street walking rapidly toward its western curb and sidewalk. He cut his motorcycle to his right and struck plaintiff when she was 6 or 8 feet from the western curb. She suffered a cerebral concussion, a broken leg and other permanent injuries. She was delirious and disoriented for several weeks and continues to incur large medical bills.\nEvidence unfavorable to plaintiff tended to show she was running across Downing Street at an angle and that the collision occurred at a point 60 feet south of the intersection and 7 or 8 feet from the west curb. This evidence is contained in the adverse examination of Danny Gardner which was offered by plaintiff. On motion to nonsuit, however, this testimony is ignored.\nThe Court of Appeals held the evidence sufficient to support a finding of actionable negligence on the part of Danny Gardner, and we concur. Even in the absence of statutory requirements, \u201c[I]t-is a general rule of law that the operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. And in the exercise of such duty it is incumbent upon the operator of a motor vehicle to keep same under control, and to keep a reasonably careful lookout, so as to avoid collision with persons and vehicles upon the highway. This duty also requires that the operator must be reasonably vigilant, and that he must anticipate and expect the presence of others.\u201d Adams v. Service Co., 237 N.C. 136, 141, 74 S.E. 2d 332, 336. It is the duty of a driver not merely to look but to keep a lookout in the direction of travel; \u201cand he is held to the duty of seeing what he ought to have seen.\u201d Wall v. Bain, 222 N.C. 375, 379, 23 S.E. 2d 330, 333. Such duty requires increased vigilance when the danger is increased by darkness or other conditions obscuring his view. Chesson v. Teer Co., 236 N.C. 203, 72 S.E. 2d 407; Bradham v. Trucking Co., 243 N.C. 708, 91 S.E. 2d 891.\nManifestly, defendant Danny Gardner\u2019s alleged failure to keep a proper lookout is supported by evidence sufficient to go to the jury on the negligence issue. We put aside further discussion of the evidence bearing on his negligence.\nThe Court of Appeals sustained a judgment of nonsuit on the premise that plaintiff was contributorily negligent as a matter of law. Nonsuit on that ground is proper only if plaintiff\u2019s evidence, considered in the light most favorable to her, so clearly establishes her own negligence as one of the proximate causes of her injury that no other reasonable inference may be drawn therefrom. Anderson v. Carter, 272 N.C. 426, 158 S.E. 2d 607; Black v. Wilkinson, 269 N.C. 689, 153 S.E. 2d 333; Raper v. Byrum, 265 N.C. 269, 144 S.E. 2d 38; Pruett v. Inman, 252 N.C. 520, 114 S.E. 2d 360. Let us look at the evidence. In the light most favorable to plaintiff it tends to show that she looked both ways before leaving the curb; that she kept looking as she was crossing; that she started straight across the street from the corner; that the motorcycle was moving at 30 miles per hour or 44 feet per second; that she was struck after walking 24 to 26 feet and before she ever saw it. The evidence fails to show where the motorcycle was when she left the curb. It would have traveled over 300 feet in 7 seconds. How long it took her to walk 26 feet is unknown. Does this evidence so clearly establish negligence on her part that no other reasonable inference or conclusion can be drawn therefrom? We think not. It is sufficient to support a jury finding that plaintiff was crossing Downing Street in an unmarked crosswalk at an intersection and thus had the right of way under G.S. 20-173(a). The Court of Appeals so held. Its -unfavorable aspects would permit the jury to find that she was crossing Downing Street 60 feet south of the intersection at a point where there was no marked crosswalk and thus was required to yield the right of way to all vehicles upon the street under G.S. 20-174(a). These are opposing inferences permissible from plaintiff\u2019s evidence, and only the jury may make the choice. Nonsuit as a matter of law should therefore be denied. Byers v. Products Co., 268 N.C. 518, 151 S.E. 2d 38; Stewart v. Gallimore, 265 N.C. 696, 144 S.E. 2d 862; Montford v. Gilbhaar, 265 N.C. 389, 144 S.E. 2d 31; Murray v. Bottling Co., 265 N.C. 334, 144 S.E. 2d 1. Hence, it was error to conclude that she was contribu-torily negligent as a matter of law for failure to see the motorcycle and to use ordinary care for her own safety. If she was crossing in an unmarked crosswalk at an intersection, she was not required to anticipate negligence on the part of others. In the absence of anything which gave or should have given notice to the contrary, she was entitled to assume and to act upon the assumption, even to the last moment, that others would observe and obey the statute which required them to yield the right of way. Reeves v. Staley, 220 N.C. 573, 18 S.E. 2d 239; Carr v. Lee, 249 N.C. 712, 107 S.E. 2d 544; Gamble v. Sears, 252 N.C. 706, 114 S.E. 2d 677. Had plaintiff .seen the motorcycle approaching, this rule of law would still apply. Whether its speed, proximity, or manner of operation were such that plaintiff, simply by failing to see it, failed to exercise due care for her own safety is a jury question on this record. The evidence shows nothing unusual in the motorcycle\u2019s approach which would have put plaintiff on notice that the cyclist did not intend to obey the law and yield the right of way. Thus the circumstances permit opposing inferences, and this carries the case to the jury.\nCases followed by the Court of Appeals \u2014 Warren v. Lewis, 273 N.C. 457, 160 S.E. 2d 305; Price v. Miller, 271 N.C. 690, 157 S.E. 2d 347; Blake v. Mallard, 262 N.C. 62, 136 S.E. 2d 214; Rosser v. Smith, 260 N.C. 647, 133 S.E. 2d 499; and Garmon v. Thomas, 241 N.C. 412, 85 S.E. 2d 589 \u2014 are all factually distinguishable. The principles of law enunciated in them are perfectly sound and are applied in each case to a litigant who did not have the right of way. True, right of way is not absolute. It was plaintiff\u2019s duty here, even with the right of way, to exercise ordinary care for her own safety. Carr v. Lee, supra. On that aspect of her conduct, however, there is evidence to support a finding either way. It becomes a question of fact for the jury rather than a matter of law for the court. Both sides allege right of way in themselves and each charges the other with failure to yield. This is the crux of the case. The rights and liabilities of the parties largely hinge upon the jury\u2019s answer to that proposition.\nPlaintiff alleges that the motorcycle which struck her was owned and maintained by James Gardner as a family purpose vehicle for the use and pleasure of members of his family and particularly his 18-year-old son Danny Gardner who was a member of his father\u2019s household; and further, that Danny was operating the motorcycle as his father\u2019s agent and with his father\u2019s permission and consent. These allegations are denied in the answer of both defendants. In the adverse examination of Danny Gardner, offered in evidence by plaintiff, Danny testified: \u201cI own it but the motor vehicle registration certificate is in my. father\u2019s name. He applied for the registration so it could be issued in his name. I use the motorcycle for my own use and pleasure. No one else uses it.\u201d Proof of registration in the name of James Gardner is prima facie evidence of ownership by him and agency in the driver under G.S. 20-71.1 (b). Such prima facie evidence of ownership in the father is sufficient to carry the case to the jury against him. Travis v. Duckworth, 237 N.C. 471, 75 S.E. 2d 309; Jyachosky v. Wensil, 240 N.C. 217, 81 S.E. 2d 644. And this is true even though plaintiff\u2019s proof goes further and shows by the testimony of Danny Gardner that he, not his father, owned the motorcycle, maintained it for his own use, and was on a mission of his own at the time of the collision out of which plaintiff\u2019s injuries arose. This evidence is sufficient, if true, to rebut the prima facie evidence that James Gardner owned the motorcycle and Danny Gardner was driving it as the owner\u2019s agent. Even so, proof of registration in James Gardner\u2019s name is evidence to the contrary. Since discrepancies, conflicts and contradictions in plaintiff\u2019s evidence do not justify nonsuit, the decision of the Court of Appeals sustaining the nonsuit as to James Gardner is erroneous. Perkins v. Cook, 272 N.C. 477, 158 S.E. 2d 584.\nThe decision of the Court of Appeals is reversed as to both defendants. The case is remanded to that Court where it will be certified to the trial court for a new trial in accord with this opinion.\nReversed and remanded.\nLake, J., took no part in the consideration or decision of this case.", "type": "majority", "author": "HusKins, J." } ], "attorneys": [ "Connor, Lee, Connor & Reece, by Cyrus F. Lee, Attorneys for the plaintiff appellant.", "Boyce, Lake & Burns, by Eugene Boyce, Attorneys for defendant appellees." ], "corrections": "", "head_matter": "MAGGIE A. BOWEN v. DANNY CLIFTON GARDNER, Appearing Herein by his Guardian Ad Litem, MILDRED D. GARDNER, and JAMES GARDNER\nNo. 35\n(Filed 18 June 1969)\n1. Trial \u00a7 21\u2014 nonsuit \u2014 consideration of evidence\nUpon motion for nonsuit, all the evidence which supports plaintiff\u2019s claim must be taken as true and considered in the light most favorable to plaintiff, giving him the benefit of every reasonable inference which legitimately may be drawn therefrom, and with contradictions, conflicts and inconsistencies being resolved in plaintiff\u2019s favor.\n2. Trial \u00a7 21\u2014 nonsuit \u2014 consideration of evidence\nUpon motion for nonsuit, defendant\u2019s evidence which contradicts that of plaintiff or tends to show a different state of facts and acts of contributory negligence not alleged in the answer should be disregarded.\n3. Negligence \u00a7 35\u2014 nonsuit for contributory negligence\nWhen opposing inferences are permissible from plaintiff\u2019s evidence, nonsuit on the basis of contributory negligence as a matter of law should be denied.\n4. Automobiles \u00a7 8\u2014 duty to maintain lookout\nThe operator of a motor vehicle is under a duty in the exercise of due care to keep his vehicle under control and to keep a reasonably careful lookout so as to avoid collision with persons and vehicles upon the highway, this duty requiring that the operator be reasonably vigilant and that he anticipate and expect the presence of others.\n5. Automobiles \u00a7 8\u2014 duty to maintain lookout\nIt is the duty of a driver not merely to look but to keep a lookout im the direction of travel, and he is held to the duty of seeing what he ought to have seen, it being required that he increase his vigilance when the danger is increased by darkness or other conditions obscuring his view.\n6. Automobiles \u00a7 62\u2014 striking pedestrian \u2014 failure to keep proper lookout\nPlaintiff; pedestrian\u2019s evidence tending to show that she was struck by a motorcycle operated by the minor defendant as she was crossing a city street at night in an unmarked crosswalk at an intersection, that the street was straight, level and dry, that the weather was clear and the intersection was well lighted, but that defendant failed to see plaintiff until he was within 20 feet of her, is held sufficient to be submitted to the jury on the issue of defendant\u2019s negligence in failing to' keep a proper lookout.\n7. Negligence \u00a7 85\u2014 nonsuit for contributory negligence\nNonsuit on the ground of contributory negligence is proper only if plaintiff\u2019s evidence, considered in the light most favorable to him, so clearly establishes his own negligence as one of the proximate causes of his injury that no other reasonable inference may be drawn therefrom.\n8. Automobiles \u00a7 83\u2014 pedestrian in unmarked crosswalk \u2014 contributory negligence\nIn this action for injuries received when plaintiff pedestrian was struck by defendant\u2019s motorcycle, the Court of Appeals erred in concluding that plaintiff was contributorily negligent as a matter of law for failure to see the motorcycle and to use ordinary care for her own safety where plaintiff\u2019s evidence would support the inference that she was crossing the street at an unmarked crosswalk at an intersection and thus had the right-of-way under G.S. 20-173(a), and the evidence shows nothing unusual in the motorcycle\u2019s approach which would have put plaintiff on notice that the cyclist did not intend to obey the law and yield the right-of-way.\n9. Automobiles \u00a7 40\u2014 pedestrian iu unmarked crosswalk \u2014 assumption that motorist will yield right-of-way\nIn the absence of anything which gives or should give notice to the contrary, a pedestrian crossing in an unmarked crosswalk at an intersection is entitled to assume and to act upon the assumption, even to the last moment, that others will observe and obey the statute which requires them to yield the right-of-way.\n10. Automobiles \u00a7 105\u2014 proof of vehicle registration \u2014 pilma facie \u25a0 evidence of ownership and agency\nIn an action against a minor defendant and his father for injuries received when plaintiff was struck by a motorcycle operated by the minor defendant, proof of registration in the name of the father is prima facie evidence of ownership by him and agency in the driver under G.S. 20-71.1(b) and is sufficient to carry the case to the jury against the father, notwithstanding plaintiff\u2019s further evidence is sufficient, if true, to rebut the prima fade evidence that the father owned the motorcycle and that the minor defendant was driving it as the owner\u2019s agent.\nLake, J., took no part in the consideration or decision of this case.\nON certiorari to review decision of the Court of Appeals reported in 3 N.C. App. 529, 165 S.E. 2d 545.\nThis is a civil action to recover damages for personal injuries. Plaintiff alleges she was struck by a motorcycle owned by James Gardner and operated by his son, Danny (Donny) Clifton Gardner, as the agent of his father within the meaning of the family purpose doctrine. Plaintiff charges Danny with (1) failure to keep a proper lookout; (2) excessive speed; (3) failure to yield the right of way; (4) failure to take necessary action to avoid colliding with plaintiff; (5) driving recklessly and failing to use due caution and circumspection; and (6) operating the motorcycle in the nighttime without proper headlight.\nDefendants deny all allegations of negligence, deny family purpose ownership, and plead contributory negligence on part of plaintiff in that she failed to keep a proper lookout and failed to yield the right of way to defendant Danny Clifton Gardner in violation of G.S. 20-174(a).\nMotion for judgment of nonsuit at the close of plaintiff\u2019s evidence was allowed. On appeal to the Court of Appeals the nonsuit was affirmed. We allowed certiorari.\nConnor, Lee, Connor & Reece, by Cyrus F. Lee, Attorneys for the plaintiff appellant.\nBoyce, Lake & Burns, by Eugene Boyce, Attorneys for defendant appellees." }, "file_name": "0363-01", "first_page_order": 393, "last_page_order": 400 }