Grant v. Royal , 250 N.C. 366 ( 1959 )

108 S.E.2d 627 (1959) 250 N.C. 366

George R. GRANT, Trustee for Mrs. Rebecca Kennedy, Incompetent,
v.
David Stephen ROYAL.

No. 605.

Supreme Court of North Carolina.

May 20, 1959.

Tally, Tally & Taylor, and Donald B. Strickland, Fayetteville, for plaintiff, appellant.

Nance, Barrington & Collier, by James R. Nance, Fayetteville, and Rudolph G. Singleton, Jr., Fayetteville, for defendant, appellee.

HIGGINS, Justice.

The record in this case leaves the impression that two estimable ladies, born in the horse and buggy days, failed fully to appreciate the speed of present day automobile traffic and the dangers incident thereto. On foot, they attempted to cross a four-lane street at a place where the authorities had made no provision for such crossing. Darkness, rain, wind, fog, clothing and umbrella blending with the color of the street surface, left the defendant insufficient time to avoid them after he could have discovered their intention to continue across his lane of traffic. They had stopped or hesitated in a place of safety from his intended movement. Even so, he stopped after merely bumping them without running over them.

Plaintiff and her witness were crossing from the unlighted side of the street at a place where the defendant had a right to assume and to act on the assumption that pedestrians would recognize his right of way and not obstruct it. Garmon v. Thomas, 241 N.C. 412, 85 S.E.2d 589; Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246; Mitchell v. Melts, 220 N.C. 793, 18 S.E.2d 406. (See North Carolina Index, Vol. 1, pp. 264, 265, for full citation of cases.) No presumption of negligence arises from the mere fact there has been an accident and an injury. Fleming v. Twiggs, 244 N.C. 666, 94 S.E.2d 821; Merrell v. Kindley, 244 N.C. 118, 92 S.E.2d 671; Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661.

In this case there is no evidence of speed. All the evidence indicates the defendant had only an instant in which to take evasive action after he could have observed the ladies suddenly decided to hurry across the two lanes for northbound traffic. The wonder is that complete success to avoid the accident failed by so narrow a margin.

The judgment of involuntary nonsuit in the court below is

Affirmed.

PARKER, Justice (dissenting).

Mrs. Ella Garrett Beard, a witness for plaintiff, asked defendant at the hospital after Mrs. Rebecca Kennedy had been carried there this question: "Why did you do it; didn't you see them?" He replied: "Yes, I saw them, but I thought they had stopped."

At the hospital this occurred in the presence of Miss Ida Garrett, her sister, Mrs. Burns and defendant: "My sister asked Mr. Royal why he run over us. He said that he did not see us when we stopped in the middle of the street, he saw us when we hesitated, but he thought we turned back. He did not say a thing about us as to when he saw us for the second time. But he did tell me that he saw myself and Mrs. Kennedy in the middle of the street and thought we had turned back, that is right. My sister heard it."

Ramsey Street is about 40 feet wide, and is practically level and straight, where the two ladies were struck. After Miss Ida Garrett was knocked down, she was next to the curbing, and Mrs. Kennedy was to her left. Other facts are stated in the majority opinion. These two elderly ladies were hurrying across the street as fast as they could from Mrs. Kennedy's home to attend prayer meeting at a neighbor's home.

Plaintiff, in reply to the defense of contributory negligence alleged in the answer, has invoked the doctrine of last clear chance. It seems to me from a study of the evidence, and considering it in the light most favorable to plaintiff, that these inferences may be legitimately drawn therefrom: Defendant was negligent, Mrs. Rebecca Kennedy was guilty of contributory negligence, but that, although Mrs. Kennedy had negligently placed herself in a position of peril from which she could not escape by the exercise of reasonable care, the defendant knew, or by the exercise of reasonable care could have discovered, her perilous position and her incapacity to escape from it before she was struck by his automobile, that the defendant had the time and means to avoid injury to her by the exercise of reasonable care after he discovered, or should have discovered, her dangerous position and her incapacity to escape therefrom, but negligently failed to use the available time and means to avoid striking her with his automobile, and for that reason struck and injured her. Wade v. Jones Sausage Co., 239 N.C. 524, 80 S.E.2d 150.

I vote to reverse the judgment of nonsuit entered below.