Sadler Ex Rel. Sadler v. Purser , 12 N.C. App. 206 ( 1971 )

182 S.E.2d 850 (1971) 12 N.C. App. 206

Andrew Lee SADLER, a minor by his next friend, James M. Sadler
v.
Floyd Mosby PURSER.

No. 712SC450.

Court of Appeals of North Carolina.

August 18, 1971.

Chambers, Stein, Ferguson & Lanning, by Fred A. Hicks, Charlotte, for plaintiff appellant.

Rodman & Rodman, by Edward N. Rodman, Washington, for defendant appellee.

PARKER, Judge.

The title to this action would indicate that the infant plaintiff appears by his next friend, which would be in accord with the practice which formerly prevailed in this State. 1 McIntosh, N.C. Practice and Procedure, 2nd Ed., § 690, p. 375. This practice has been changed by our new Rules of Civil Procedure, which now provide that in actions or special proceedings when any of the parties plaintiff are infants or incompetent persons, they must appear by general or testamentary guardian, if they have any within the State, or by duly appointed guardian ad litem. Rule 17(b) of the Rules of Civil Procedure. The change effected was more than a mere change in nomenclature, since substantial differences had been recognized between the powers and duties of a next friend and those of a duly appointed guardian ad litem. See Thompson v. Lassiter, 246 N.C. 34, 97 S.E.2d 492; Johnston County v. Ellis, 226 N.C. 268, 38 S.E.2d 31. This action was commenced on 3 June 1970, after the effective date of the new Rules, and the infant plaintiff should have appeared by his duly appointed guardian ad litem. Realizing this, the parties stipulated on final pretrial conference that although James M. Sadler is designated next friend for the minor plaintiff, he is properly qualified as guardian ad litem for said minor. Accordingly, we will ignore the incorrect designation in the title to this action and recognize the minor plaintiff as appearing by his duly appointed guardian ad litem.

Appellant's sole assignment of error is that the trial court erred in granting defendant's motion for a directed verdict, which was made at the close of plaintiff's evidence on the dual grounds that the evidence failed to disclose actionable negligence on the part of defendant and established plaintiff's contributory negligence as a matter of law. The motion for a directed verdict under Rule 50(a) presents substantially the same question as that formerly presented by a motion for judgment of involuntary nonsuit, namely, whether the evidence was sufficient to entitle the plaintiff to have the jury pass on it. Kelly v. International Harvester Co., 278 N.C. 153, 179 S.E.2d 396.

"The very presence of a young boy riding a bicycle on the highway is, in itself, a danger signal to a motorist approaching him from the rear. Ordinarily, it is a question for the jury as to whether the motorist has responded to such danger signal as a reasonable man would have done." Champion v. Waller, 268 N.C. 426, 150 S.E.2d 783. In the present case, however, we find it unnecessary to decide this question, since, even if it be conceded that the evidence was sufficient to require submission to the jury of an issue as to defendant's actionable negligence, in our opinion plaintiff's evidence so clearly established his own contributory negligence as a matter of law that the trial court's judgment must be sustained.

At the time of the accident, plaintiff in this case was fifteen years old. Therefore, there is a rebuttable presumption that he possessed the capacity of an adult to protect himself and he is presumptively chargeable with the same standard of care for his own safety as if he were an adult. Welch v. Jenkins, 271 N.C. 138, 155 S.E.2d 763. In this case there was no evidence to rebut that presumption nor was any contention made that plaintiff was lacking in the ability, capacity, or intelligence of the ordinary boy of his age. Thus, he was presumed to have sufficient capacity to understand and avoid a clear danger, and he is chargeable with contributory negligence as a matter of law if the only inference which could reasonably be drawn from his own evidence is that he failed to do so. Burgess v. Mattox, 260 N.C. 305, 132 S.E.2d 577.

A bicycle is a vehicle and its rider is a driver within the meaning of our Motor Vehicle Law. G.S. § 20-38(38); Lowe v. Futrell, 271 N.C. 550, 157 S.E.2d 92. Here, all of the evidence establishes that plaintiff, after peddling slowly down the wrong side of a 60-mile per hour highway, attempted to drive his bicycle from the left-hand traffic lane across the right-hand lane to the shoulder of the road without first ascertaining that it was safe for him to do so and without giving any signal of his intention to make such a maneuver. In so doing, he drove his bicycle suddenly and directly into the path of defendant's oncoming car. He either failed to hear defendant's horn signals, which his companion heard and plaintiff should have heard, or, having heard, he ignored them. He either failed to look for what was plainly there for him to see, or, having seen, disregarded what he saw. In our opinion, the only inference which may reasonably be drawn from plaintiff's evidence is that he failed to exercise that degree of care for his own safety which a reasonably prudent person would have done under the circumstances and that such failure was a proximate cause contributing to his injuries.

The case of Webb v. Felton, 266 N.C. 707, 147 S.E.2d 219, relied on by plaintiff, is distinguishable. There was here no evidence, as there was in that case, that plaintiff-bicyclist was startled into involuntary action by any sudden and frightening noise behind him or that his turning into the path of defendant's car was the result of anything other than his own deliberate action.

Defendant's motion for a directed verdict was properly allowed and the judgment appealed from is

Affirmed.

BRITT and MORRIS, JJ., concur.