Gillikin v. Mason

124 S.E.2d 541 (1962)

256 N.C. 533

Lundy GILLIKIN, Jr. v. Elton Lee MASON.

No. 97.

Supreme Court of North Carolina.

March 21, 1962.

*542 Hamilton, Hamilton & Phillips, Moorehead City, for defendant, appellant.

C. R. Wheatly, Jr., and Thomas S. Bennett, Beaufort, for plaintiff, appellee.

BOBBITT, Justice.

With reference to plaintiff's cause of action, whether the court erred in denying defendant's motions for judgment of nonsuit is not presented. No judgment was entered against defendant. He had no right of appeal from the denial of his said motions. When the court ordered the mistrial and continuance, the case, as to plaintiff's cause of action, remained on the civil issue docket for trial de novo, unaffected by rulings made therein during the trial conducted by Judge Walker. Hollingsworth GMC Trucks v. Smith, 249 N.C. 764, 107 S.E.2d 746, and cases cited.

Although the court, with reference to plaintiff's alleged cause of action, ordered the mistrial and continuance, the court's prior ruling, allowing plaintiff's motion for dismissal of defendant's cross action, was not disturbed. Compare Hollingsworth GMC Trucks v. Smith, supra. Defendant's appeal entry is in these words: "Upon the nonsuit of the defendant's counterclaim or cross-complaint, the defendant objected and excepted and gave notice of appeal in open Court, with further notice waived." No judgment implementing the court's said ruling was entered. Even so, upon this record, the court's said ruling must be considered as a judgment of nonsuit as to defendant's alleged cross action.

With reference to the cross action, defendant's status was that of a plaintiff. Hence, in passing upon whether the court erred in nonsuiting the cross action, the evidence must be considered in the light most favorable to defendant. Evidence favorable to plaintiff must be disregarded. Ashley v. Jones, 246 N.C. 442, 98 S.E.2d 667.

In brief, evidence favorable to defendant tends to show: U. S. Highway # 70 runs east-west. Its width is twenty feet or more, with shoulders of eight feet or more. Defendant lives on the north side of *543 the highway. He got in his car, turned the lights on, backed out of his private driveway to the shoulder of the highway and stopped. He looked both ways. No car was approaching from the east. Looking west, he saw one car "about 200 or 300 yards up the road." This car, coming from Beaufort, was on its "right-hand side going east." Defendant was going to Beaufort. He backed onto his (north) side of the highway. He did not go beyond the center line. When he "began to turn to get straight to go towards Beaufort," the car he saw (Lawrence car) "was then a couple of hundred feet of (him)." While in that position, defendant's car was struck by plaintiff's car. Plaintiff, who had been driving (east) behind the Lawrence car, "run around or was in the act of passing" the Lawrence car when plaintiff's car struck the left side of defendant's car. All the damage to defendant's car was back of the hood, starting at the lefthand door. There was no collision between defendant's car and the Lawrence car.

With reference to defendant's cross action, we reach these conclusions: (1) There was ample evidence to support a finding that negligence on the part of plaintiff proximately caused the collision. (2) When considered in the light most favorable to defendant, the evidence did not establish as a matter of law that negligence on the part of defendant proximately caused the collision. These issues, raised by the pleadings, were for jury determination upon sharply conflicting evidence. Having reached these conclusions on the basis of the admitted evidence, it is unnecessary to consider whether the court erred in excluding other evidence proffered by defendant.

It is noted: Defendant, in his cross action, alleged the negligence of plaintiff proximately caused the collision. He did not eo nomine plead the contributory negligence of plaintiff in bar of plaintiff's right to recover. Plaintiff, in his complaint, alleged the negligence of defendant proximately caused the collision. He filed no reply to defendant's cross action.

Obviously, this action and Mason v. Gillikin, ante, 124 S.E.2d 537, grow out of the same collision. However, it is noted: In this action, U. S. Highway # 70, where the collision occurred, is referred to in the pleadings and evidence as running eastwest, but in Mason v. Gillikin it is referred to as running north-south.

For the reasons stated, the ruling of the court below, treated as a judgment of nonsuit as to defendant's cross action, is reversed.

Reversed.

SHARP, J., took no part in the consideration or decision of this case.