{ "id": 8561160, "name": "THOMAS E. BLACKWELL v. HENRY T. BUTTS, Guardian Ad Litem of LARRY WAYNE BUTTS", "name_abbreviation": "Blackwell v. Butts", "decision_date": "1971-05-12", "docket_number": "No. 71", "first_page": "615", "last_page": "623", "citations": [ { "type": "official", "cite": "278 N.C. 615" } ], "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": "160 S.E. 2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575569 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0457-01" ] }, { "cite": "75 S.E. 2d 111", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1953, "pin_cites": [ { "page": "117" } ], "opinion_index": 0 }, { "cite": "237 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611024 ], "weight": 2, "year": 1953, "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/nc/237/0328-01" ] }, { "cite": "160 S.E. 2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "33" } ], "opinion_index": 0 }, { "cite": "273 N.C. 355", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575337 ], "pin_cites": [ { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0355-01" ] } ], "analysis": { "cardinality": 714, "char_count": 18552, "ocr_confidence": 0.572, "pagerank": { "raw": 6.558783205993846e-07, "percentile": 0.9612795958374407 }, "sha256": "6bd4245f89f2067c45de15a6b5a48ab9a575cb122ee2e611962cb542b5280fa7", "simhash": "1:a401a5e348d81659", "word_count": 3122 }, "last_updated": "2023-07-14T20:07:15.509345+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THOMAS E. BLACKWELL v. HENRY T. BUTTS, Guardian Ad Litem of LARRY WAYNE BUTTS" ], "opinions": [ { "text": "BOBBITT, Chief Justice.\nThe trial was by the court without a jury. A contention by defendant that plaintiff upon the facts and the law had shown no right to relief should have been presented by a motion to dismiss on that ground. Rule 41(b) of the Rules of Civil Procedure (G.S. 1A-1). The record does not show defendant made a motion to dismiss.\nIn reversing on the ground there was insufficient evidence to support the factual elements in Finding of Fact #6, the Court of Appeals held in effect that upon the facts and the law plaintiff had shown no right to relief and that plaintiff\u2019s action should have been dismissed on that ground. This was comparable to the ground for entering a judgment of involuntary nonsuit under the former procedure.\nRule 52(a)(1) provides: \u201cIn all actions tried upon the facts without a jury . . . , the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.\u201d\nInstead of stating separately his conclusions of law, the trial judge answered issues of negligence and contributory negligence. Although we do not approve this variation from the procedure prescribed by Rule 52(a) (1), we treat the court\u2019s answers to these issues as the equivalent of stated conclusions of law (1) that plaintiff\u2019s Ford was damaged by the negligence of defendant, and (2) that plaintiff did not by his own negligence contribute to his own damage.\nWhen a jury trial is waived, the court\u2019s findings of fact have the force and effect of a verdict by a jury and are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary. Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E. 2d 29, 33, and cases cited. There is no difference in this respect in the trial of an action upon the facts without a jury under Rule 52(a) (1) and a trial upon waiver of jury trial under former G.S. 1-185. Findings of fact made by the court which resolve conflicts in the evidence are binding on appellate courts.\nThe greater portion of the evidence has been quoted in the majority opinion of the Court of Appeals. Repetition in detail is unnecessary.\nAccording to Mrs. Blackwell: She had stopped at the edge of Highway No. 150. Immediately before driving onto the highway, she looked to her right and saw no approaching vehicle. Although unsure as to the exact distance, she \u201cguessed\u201d she could see \u201cabout 200 feet.\u201d Before the Blackwell Ford was struck by the Chevrolet operated by defendant, Mrs. Blackwell had entered upon the highway, turned obliquely to her left, shifted into second gear, got fully in the lane for westbound traffic and was proceeding in that (her right) lane at a speed of \u201cabout 15 to 20 miles per hour.\u201d The Blackwell car had traveled \u201cabout 50 feet\u201d from the time Mrs. Blackwell started out until struck by the Chevrolet. Mrs. Blackwell \u201cdid not hear a horn blow, nor did (she) hear tires squeal.\u201d\nAccording to defendant: When he first saw the Blackwell car, it was stopped at the end of the driveway, the bumper being \u201cabout even with the pavement.\u201d It was then \u201cabout 300 feet\u201d from him. His speed was from fifty to fifty-five miles per hour. About the time he saw the Blackwell car, Mrs. Blackwell started to pull out. At that time he blew his horn and applied his brakes enough to break the speed but not enough to slide the wheels. The Blackwell car \u201ckept coming out in the highway\u201d and defendant \u201ckept on blowing (his) horn.\u201d The right front of his car struck the left rear of the Blackwell car. When this occurred, the Blackwell car \u201cwas in the middle of the road in an angle.\u201d\nIf the actual impact between the Chevrolet operated by defendant and the Blackwell car occurred \u201con the left side of the center of the road,\u201d as defendant testified, it may be there was insufficient time for defendant to stop between the first observable movement of the Blackwell car into Highway No. 150 and the collision. On the other hand, if the actual impact occurred when the Blackwell car was fully in the right lane for westbound traffic and was proceeding therein, as Mrs. Blackwell testified, there was evidence which, when considered in the light most favorable to plaintiff, was sufficient to support findings that defendant, if he had exercised due care to keep a proper lookout and to keep the Chevrolet under proper control, saw or by the exercise of due care should have seen the Blackwell car as it entered and crossed Highway No. 150 and that, by the exercise of due care, defendant could have brought the Chevrolet under control by applying the brakes with greater vigor or by swerving the Chevrolet to his left or both.\nThe record contains a stipulation that \u201c(t)he accident report prepared by the investigating Highway Patrolman . . . is admitted into evidence for the purpose of tending to show what the officer would testify to if he were in Court with the exception that the entry as to the speed would not be competent.\u201d It appears from the diagram on this accident report that the Blackwell car was entirely on its right side of the road when struck by the Chevrolet operated by defendant.\nThe court resolved the conflict in the evidence as to where the impact occurred in plaintiff\u2019s favor in Finding of Fact #4.\nIt appears from the accident report that no tire impressions were made by the Blackwell car or by the Chevrolet prior to the impact; that the Chevrolet traveled a distance of 108 feet and the Ford a distance of 71 feet; and that the Ford had been knocked across a ditch to its right and had overturned. Mrs. Blackwell testified the Ford, after turning over twice, landed on its top in a yard on its right side of the road.\nNo eastbound traffic was involved in any way.\nComparable to the well established and oft-stated rule under the former practice, a motion to dismiss on the ground the evidence discloses contributory negligence as a matter of law should be granted when, and only when, the undisputed 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.\nAdmittedly, there was evidence which would have supported a finding that negligence on the part of Mrs. Blackwell was a contributing proximate cause of the collision and the damage to plaintiff\u2019s car. However, the evidence was insufficient to establish that Mrs. Blackwell was contributorily negligent as a matter of law. This is not the only reasonable inference or conclusion that may be drawn from the evidence. Having started across the highway when she could see no traffic approaching from her right, due care may have required that she proceed forthwith into the lane for westbound traffic rather than hesitate and create uncertainty as to her intention. A portion of the Blackwell car entered the lane for westbound traffic when Mrs. Blackwell had traveled approximately eleven feet.\nIn weighing defendant\u2019s testimony, the court may have considered that defendant\u2019s credibility was somewhat, impaired by the admission that, although only nineteen years of age, he had \u201cbeen involved in three or four accidents,\u201d had traffic violations consisting of one for reckless driving, three for speeding, and one for driving on the wrong side of the road, and had \u201clost (his) license one time.\u201d Whether the court accepted as credible the testimony that defendant \u201ckept on blowing (his) horn\u201d as he approached the scene of collision does not appear. If so, the court might well have considered that defendant, if he saw what he should have seen, chose to rely more heavily upon his horn than upon his brakes.\nThe Court of Appeals relied largely on our decisions in Garner v. Pittman, 237 N.C. 328, 75 S.E. 2d 111 (1953), and Warren v. Lewis, 273 N.C. 457, 160 S.E. 2d 305 (1968). On account of substantial factual differences, these cases do not control decision in the present case.\nIn Garner, the plaintiff was a passenger in the car owned and operated by defendant Pittman. The Pittman car entered Market Street in Smithfield from the north over a private driveway at a warehouse, intending to cross to the south portion of the street and drive thereon in the lane for eastbound traffic. The Pittman car was struck by the car of the defendant Sipe which had traveled from the bridge over Neuse River in the lane for eastbound traffic. In holding the evidence disclosed the negligence of Pittman was the sole proximate cause (Note: The uncontradicted evidence is that Pittman admitted \u201cit was all (his) fault\u201d), Justice (later Chief Justice) Winborne, for the Court, said: \u201cAll the evidence shows that the view from the entrance to the private road or drive to the river bridge, the direction from which the automobile of defendant Sipe was approaching, was unobstructed for a distance of 200 to 300 feet. Yet defendant Pittman stated to defendant Sipe at the time, and testified on the witness stand that he did not see the Sipe automobile until the moment of impact. Plaintiff saw it when it was 100 feet away.\u201d 237 N.C. at 335, 75 S.E. 2d at 117. The width of Market Street in front of the warehouse was variously estimated as from forty to sixty feet. The Pittman car was only partially in the lane for eastbound traffic when the collision occurred. The Sipe car struck the right side of the Pittman car.\nIn Warren, the plaintiff attempted to enter the main highway (Shattalon Drive) from the north over a private road, intending to turn east on Shattalon. A white line separated the lanes for eastbound and westbound traffic. The defendant, driving his Dodge eastward, crashed into the rear of the plaintiff\u2019s Chevrolet before the plaintiff completed his intended movement. Judgment of involuntary nonsuit was affirmed on the ground that the plaintiff\u2019s evidence disclosed contributory negligence as a matter of law. The opinion of Justice Higgins for this Court states: \u201cHis (plaintiff\u2019s) view from the intersection to his right was unobstructed to the top of a hill 400 to 600 feet west of the intersection. An automobile could be seen an additional 50 feet beyond the crest. In clear weather, and in broad daylight, he entered the main highway, without discovering the vehicle approaching from the west. The physical evidence indicated the plaintiff had moved only a distance of approximately 16 feet \u2014 6 to and 10 across the north lane before the collision. The plaintiff testified he never saw the defendant\u2019s Dodge before this * . . . his third wreck.\u2019 \u201d 273 N.C. at 460, 160 S.E. 2d at 307.\nWe think the evidence was sufficient to support Finding of Fact #6 and the judgment entered by the trial judge. Hence, the decision of the Court of Appeals is reversed and the cause is remanded to that Court for entry of a judgment affirming the judgment entered in the superior court.\nError and remanded.", "type": "majority", "author": "BOBBITT, Chief Justice." } ], "attorneys": [ "McMichael, Griffin & Post, by Albert J. Post and W. Edward Deaton, for plaintiff appellant.", "Bethea, Robinson & Moore, by Norwood E. Robinson, for defendant appellee." ], "corrections": "", "head_matter": "THOMAS E. BLACKWELL v. HENRY T. BUTTS, Guardian Ad Litem of LARRY WAYNE BUTTS\nNo. 71\n(Filed 12 May 1971)\n1. Rules of Civil Procedure \u00a7 41 \u2014 nonjury trial \u2014 motion to dismiss\nContention by defendant in a nonjury trial that plaintiff upon the facts and the law has shown no right to relief should be presented by a motion to dismiss on that ground. G.S. 1A-1, Rule 41(b).\n2. Rules of Civil Procedure \u00a7 52 \u2014 nonjury trial \u2014 judgment \u2014 conclusions . of law \u2014 answering of issues\nTrial judge in a nonjury trial should have stated separately his conclusions of law instead of merely answering issues of negligence and contributory negligence after making findings of fact. G.S. 1A-1, Rule 52(a) (1).\n3. Rules of Civil Procedure \u00a7 52; Trial \u00a7 58 \u2014 nonjury trial \u2014 appellate review\nWhen a jury trial is waived, the court\u2019s findings of fact have the force and effect of a verdict by a jury and are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary.\n4. Rules of Civil Procedure \u00a7 41\u2014 motion to dismiss \u2014 contributory negligence\nA motion to dismiss on the ground the evidence discloses contributory negligence as a matter of law should be granted when, and only when, the undisputed 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.\n5. Automobiles \u00a7 59\u2014 vehicle struck after entering highway from private driveway \u2014 negligence and contributory negligence\nIn this action to recover for damages to plaintiff\u2019s automobile when struck by defendant\u2019s vehicle after entering the highway from a private driveway, heard by the court without a jury, the evidence was insufficient to establish that plaintiff\u2019s driver was contributorily negligent as a matter of law and was sufficient to support the court\u2019s finding that the sole proximate cause of the collision was the negligence of defendant in failing to keep a proper lookout and in failing to keep his vehicle under proper control.\nAppeal by plaintiff from the Court of Appeals.\nThe Court of Appeals, by a two to one decision of the hearing panel, reversed the judgment entered in favor of plaintiff by Long, J., at April 1970 Civil Session of EOCKINGHAM Superior Court. One member of the panel having dissented, plaintiff\u2019s appeal is of right under G.S. 7A-30(2).\nPlaintiff instituted this action December 14, 1967, in the Reidsville Recorder\u2019s Court, to recover $1,860.00 for the damage to his 1965 Ford Mustang when struck by the 1959 Chevrolet owned by Henry T. Butts.\nThe collision occurred in Caswell County, North Carolina, on North Carolina Highway No. 150, on June 23, 1967, at approximately 2:50 p.m. The paved portion of this two-lane highway was approximately twenty-two feet wide. The weather was clear and the highway was dry. When the collision occurred, the Ford was being operated, with plaintiff\u2019s knowledge and consent, by his wife, Betty Mimms Blackwell, and the Chevrolet was being operated by Larry Wayne Butts, defendant herein, the nineteen-year-old son of the owner.\nPlaintiff alleged the collision and resulting damage to his car were caused by the negligence of defendant. Defendant denied negligence; pleaded Mrs. Blackwell\u2019s negligence was the sole or a contributing cause of the collision; alleged Mrs. Blackwell was operating the Ford as plaintiff\u2019s agent; and, notwithstanding the admission in the answer that Henry T. Butts was the owner, defendant alleged he was entitled to recover from plaintiff by way of counterclaim the sum of $550.00 on account of damage to the Chevrolet.\nThe action was first tried in the Reidsville Recorder\u2019s Court and upon appeal was tried de novo in the superior court. In the superior court, the parties waived a jury trial and stipulated, inter alia, \u201c(t)hat if the Court awards a verdict to the plaintiff for damages to the automobile, the amount to be awarded will be for $1,360.00.\u201d\nIn addition to the undisputed facts stated above, the court made the factual findings quoted below. (Note: The court\u2019s findings in respect of directions are based on the erroneous assumption that N. C. Highway No. 150 in the vicinity of the collision runs north-south rather than east-west as disclosed by the evidence and by the agreed statement of case on appeal. The correct directions, substituted for those in the court\u2019s findings, are shown in parentheses.)\n\u201c3. That, immediately preceding the accident complained of, the plaintiff\u2019s Mustang automobile was parked in a private drive on the (south) side of N.C. Highway 150 preparing to enter N.C. Highway #150; that approximately 200 feet (east) of the drive, N.C. Highway 150 curved sharply in a (southeasterly) direction;\n\u201c4. That while the plaintiff\u2019s wife was stopped preparing to enter N.C. Highway #150, she looked both to the (west) and then to the (east) and, ascertaining that there were no approaching vehicles to be seen, she started off in first gear, then made a left turn onto the highway, proceeding in the (westbound) lane, and thereafter shifted into second gear and obtained a speed of approximately 20 miles per hour in a (westerly) direction down N.C. Highway 150;\n\u201c5. That, at or about the same time that the plaintiff\u2019s motor vehicle entered N.C. Highway #150 from a private drive, the . . . motor vehicle operated by the defendant Larry Wayne Butts rounded the sharp curve in N.C. Highway #150 and thereafter proceeded (west) in the (west) lane of travel and crashed into the rear of the plaintiff\u2019s vehicle and knocked the plaintiff\u2019s vehicle down the roadway and into a ditch along the (north) side of said highway causing the plaintiff\u2019s motor vehicle to overturn and the damages as alleged in the Complaint;\n\u201c6. That the sole proximate cause of the collision complained of and the damages to the plaintiff\u2019s automobile was the negligence of the defendant in failing to keep a proper lookout and in failing to keep his Chevrolet automobile under proper control; and, further, the Court finds that the plaintiff is entitled to a Judgment for the damages to the plaintiff\u2019s automobile.\u201d\nThe court then stated the issues for determination, namely, negligence, contributory n\u00e9gligence and damages, and answered the negligence issue, \u201cYes,\u201d the contributory negligence issue, \u201cNo,\u201d and the issue as to damages \u201c$1,360.00.\u201d Thereupon, the court entered judgment in plaintiff\u2019s favor for $1,360.00 and costs.\nDefendant excepted to the judgment (Exception #2) and appealed. At the end of Paragraph 6 of the court\u2019s findings of fact, which is also at the end of all of the court\u2019s findings of fact, there appears without further explanation the following: \u201cException #1.\u201d Based on \u201cException #1,\u201d defendant\u2019s appeal entries assert \u201cthere was not sufficient evidence from which the Court could find as a fact that the defendant was guilty of any negligence and that the evidence overwhelmingly showed that the plaintiff was guilty of negligence as a matter of law.\u201d\nIn the Court of Appeals, the majority opinion, in accordance with defendant\u2019s brief, considered that \u201cException #1\u201d was directed solely to Finding of Fact #6 and held that the evidence did not support a finding \u201c(t)hat the sole proximate cause of the collision complained of and the damages to the plaintiff\u2019s automobile was the negligence of the defendant in failing to keep a proper lookout and in failing to keep his Chevrolet automobile under proper control.\u201d\nMcMichael, Griffin & Post, by Albert J. Post and W. Edward Deaton, for plaintiff appellant.\nBethea, Robinson & Moore, by Norwood E. Robinson, for defendant appellee." }, "file_name": "0615-01", "first_page_order": 635, "last_page_order": 643 }