Bowen v. Gardner ex rel. Gardner , 3 N.C. App. 529 ( 1969 )

PARKER, J.

At the outset, it should be noted that the minor defendant testified that he spells his first name Bonny. However, in the record and the briefs, including his own brief, the defendant’s first name is spelled Danny; therefore, he will be referred to in this opinion as Danny.

Appellant assigns as error the ruling of the trial court in granting the defendants’ motion for judgment as of nonsuit at the close of plaintiff’s evidence.

This motion poses the following questions:

1. Does the plaintiff’s evidence show negligence as alleged on the part of defendants, proximately causing injury to plaintiff; and if so

2. Does the plaintiff’s own evidence establish her contributory negligence as alleged as a matter of law?

We are of the opinion and so hold that the plaintiff’s evidence is sufficient to permit a jury to find actionable negligence on the part of the defendant Danny, proximately resulting in personal injuries to the plaintiff. We are required to consider plaintiff’s evidence in the light most favorable to plaintiff on motion for judgment of nonsuit. Anderson v. Carter, 272 N.C. 426, 158 S.E. 2d 607. Plaintiff’s evidence tends to show that the defendant Danny, who was operating the motorcycle owned by him and registered in the name of his father, the defendant James Gardner, did not see the plaintiff until he was within twenty feet of her. On the evidence in this case, the failure to do so was a failure to keep a proper lookout as alleged. The evidence further tends to show that the defendant Danny failed to yield the right of way to the plaintiff, a pedestrian, who was crossing Downing Street in an unmarked crosswalk at an intersection.

We come now to consider the second question. There were neither traffic signals nor marked crosswalks at the intersection of Jordan and Downing Streets. Downing Street runs generally north and south. Jordan Street runs generally east and west. There are paved sidewalks running north and south and parallel to Downing Street. There is an unpaved grass strip which one of the witnesses described as “what you would call a sidewalk” running east and west and parallel to Jordan Street and on the south side thereof where Jordan Street intersects with the east margin of Downing Street. The evidence reveals that the plaintiff was walking westward on the south side of Jordan Street on this area that is called the sidewalk before entering Downing Street at or near the intersection of Jordan Street with Downing Street. In Anderson v. Carter, supra, Justice Lake said, “We construe the term ‘unmarked crosswalk at an intersection,’ as used in G.S. 20-173 (a) and G.S. 20-174(a), to mean that area within an intersection which also lies within the lateral boundaries of a sidewalk projected across the intersection.”

Although there is evidence otherwise, taking the evidence in the light most favorable to the plaintiff, at the time of the collision the plaintiff was in the lateral boundaries of what is called a sidewalk projected across the intersection of Downing Street as it is intersected by Jordan Street. Under the provisions of G.S. 20-173(a), it was the duty of the defendant to yield the right of way to plaintiff, a pedestrian, in an unmarked crosswalk, at an intersection.

Even though the evidence in the light most favorable to the plaintiff tended to show that plaintiff was crossing Downing Street in an unmarked crosswalk at an intersection of Jordan and Downing Streets, and therefore had the right of way, plaintiff was under the duty to exercise due care for her own safety. This duty required her to keep a proper lookout for vehicular traffic using the street and to exercise that degree of care for her own safety that a reasonably prudent person would under the same or similar circumstances. It was her duty, even though she had the right of way, in the exercise of reasonable care for her own safety to keep a timely lookout for approaching vehicular traffic on the street and to see what she should have and could have seen if she had looked before she started across and during the crossing of Downing Street. In the case of Rosser v. Smith, 260 N.C. 647, 653, 133 S.E. 2d 499, the Supreme Court said:

“It was the duty of defendant both at common law and under the express provisions of G.S. 20-174 (e) to ‘exercise due care to avoid colliding’ with Mrs. Rosser on the highway. Landini v. Steelman, 243 N.C. 146, 90 S.E. 2d 377. Even if we concede that plaintiff’s evidence, and defendant’s evidence favorable to him, would permit a jury to find that defendant failed to exercise due care to avoid striking Mrs. Rosser after she saw her, it is manifest that plaintiff’s own evidence so clearly shows negligence on the part of his intestate, which proximately contributed to her injuries and death, that no other conclusion can be reasonably drawn therefrom.

“The law imposes upon a person sui juris the duty to use ordinary care to protect himself from injury, and the degree of such care should be commensurate with the danger to be avoided. Holland v. Malpass, 255 N.C. 395, 121 S.E. 2d 576; Alford v. Washington, 244 N.C. 132, 92 S.E. 2d 788; 65 C.J.S., Negligence, sec. 116, p. 706. It was the duty of Mrs. Rosser to look before she started across the highway. Goodson v. Williams, 237 N.C. 291, 296, 74 S.E. 2d 762, 766. It was also her duty in the exercise of reasonable care for her own safety to keep a timely lookout for approaching motor traffic on the highway to see what she should have seen and could have seen if she had looked before she started across the highway. Garmon v. Thomas, 241 N.C. 412, 416, 85 S.E. 2d 589, 592."

Plaintiff’s evidence tends to show that she was going across Downing Street as “quick as I could, because it was a very busy street.” The evidence is not clear as to whether she was walking or running. Plaintiff’s evidence also tends to show that the speed limit there was 35 miles per hour, that the defendant’s motorcycle was being operated at a speed of about 30 miles per hour after it had stopped at a service station about three or four hundred feet north of the intersection of Jordan and Downing Streets where the collision occurred. The street was straight, level, visibility was good, and the roadway was dry.

In the case of Warren v. Lewis, 273 N.C. 457, 160 S.E. 2d 305, it is stated:

“Justice Lake, in Douglas v. W. C. Mallison & Son, 265 N.C. 362, 144 S.E. 2d 138, has accurately and concisely stated the rule governing nonsuit on the ground of plaintiff’s contributory negligence. ‘A judgment of nonsuit on the ground of contributory negligence may be entered only when the plaintiff’s evidence, considered alone and taken in the light most favorable to him, so clearly establishes the defense that no other reasonable inference or conclusion can be drawn therefrom. Cowan v. Transfer Co., 262 N.C. 550, 138 S.E. 2d 228; Waters v. Harris, 250 N.C. 701, 110 S.E. 2d 283; Strong, N. C. Index, Negligence, § 26. For such a ruling to be proper, it is also necessary that the answer has alleged the negligent act or omission on the part of the plaintiff which is so shown by the evidence. Maynor v. Pressley, 256 N.C. 483, 124 S.E. 2d 162; Rodgers v. Thompson, 256 N.C. 265, 123 S.E. 2d 785; Messick v. Turnage, 240 N.C. 625, 83 S.E. 2d 654; Hunt v. Wooten, 238 N.C. 42, 76 S.E. 2d 326; G.S. 1-139.’ ”

In this case the plaintiff had the right of way and had the right to assume that the defendant in the operation of his motorcycle would keep a proper lookout and yield the right of way. However, the plaintiff negligently failed to see the defendant’s approaching motorcycle and thus failed to see a danger which was or should have been obvious to her. She testified she looked and kept looking as she was crossing but did not see or hear the motorcycle that struck her. Although it was there with its light burning and had been coming toward her on a straight street for three or four hundred feet, she was, in her rush to cross the street, totally unaware of its approach on a street on which she testified she knew traffic was always heavy.

Plaintiff argues that the doctrine of last clear chance is applicable. Under the facts in this case, we do not agree.

We are of the opinion and so hold that the evidence clearly shows that the plaintiff was contributorily negligent as a matter of law in failing to see what she ought to have seen and in failing to use that degree of care for her own safety in crossing this busy street that an ordinarily prudent person would have used under the same or similar circumstances and that her failure to do so was one of the proximate causes of her injuries. The cases cited by plaintiff are factually distinguishable. Warren v. Lewis, supra; Price v. Miller, 271 N.C. 690, 157 S.E. 2d 347; Blake v. Mallard, 262 N.C. 62, 136 S.E. 2d 214; Garmon v. Thomas, 241 N.C. 412, 85 S.E. 2d 589; Rosser v. Smith, supra.

We are of the opinion that the judgment of nonsuit was properly entered.

Affirmed.

Mallard, C.J., and BROCK, J., concur.