Wolfe v. Burke , 101 N.C. App. 181 ( 1990 )

ORR, Judge.

The issue on appeal is whether the trial court erred in granting defendant’s motion for directed verdict on the grounds that 1) there was insufficient evidence regarding the issue of defendant’s negligence which was a proximate cause of plaintiffs injury to go to the jury, and 2) the evidence disclosed that the plaintiff was contributorially negligent as a matter of law. For the reasons set forth below, we conclude that the trial court erred in granting defendant’s motion for a directed verdict.

In determining a motion for a directed verdict pursuant to N.C. Gen. Stat. § 1A-1, Rule 50 (1990), the trial court must “consider all the evidence in the light most favorable to the nonmoving party. A directed verdict may be granted only if, as a matter of law, the evidence is insufficient to justify a verdict for the nonmovant.” Watkins v. Hellings, 321 N.C. 78, 81, 361 S.E.2d 568, 570 (1987).

Plaintiff argues that the evidence was sufficient to go to the jury on the issues of defendant’s and plaintiff’s negligence. “[Sjince negligence usually involves issues of due care and reasonableness of actions under the circumstances, it is especially appropriate for determination by the jury.” Radford v. Norris, 74 N.C. App. 87, 88-89, 327 S.E.2d 620, 621-22, disc. review denied, 314 N.C. 117, 332 S.E.2d 483 (1985).

In North Carolina, a pedestrian has “a common law duty to exercise reasonable care for his own safety by keeping a proper lookout for approaching traffic before entering the road and while on the roadway.” Whitley v. Owens, 86 N.C. App. 180, 182, 356 S.E.2d 815, 817 (1987). Further, N.C. Gen. Stat. § 20474(a) (1989) provides that a pedestrian “crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.”

In addition to a motorist’s common law duty “ ‘to exercise due care to avoid colliding with’ a pedestrian,” Gamble v. Sears, 252 N.C. 706, 710, 114 S.E.2d 677, 679 (1960) (quoting Landini v. Steelman, 243 N.C. 146, 148, 90 S.E.2d 377, 379 (1955)), N.C. Gen. Stat. § 20474(e) (1989) provides that “[notwithstanding the provisions of this section, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, and shall give warning by sounding the horn when necessary . . . .”

Under G.S. 20474(e), a motorist has the duty ... to operate his vehicle at a reasonable rate of speed, keep a lookout for persons on or near the highway, decrease his speed when special hazards exist with respect to pedestrians, and give warning of his approach by sounding his horn if the circumstances warrant.

State v. Fearing, 48 N.C. App. 329, 336, 269 S.E.2d 245, 249, cert. denied, 301 N.C. 99, 273 S.E.2d 303, disc. review denied, 301 N.C. 403, 273 S.E.2d 448 (1980), aff'd in part and new trial granted in part on other grounds, 304 N.C. 471, 284 S.E.2d 487 (1981).

In the instant case, there was evidence the collision occurred on the straight strip of road, and there were no obstructions for 60 to 70 yards from the top of the hill where the road curves to the bottom of the straight strip of road. Defendant did not see plaintiff prior to impact though his father saw plaintiff at impact. Further, the evidence tends to show that defendant’s headlights were burning, and plaintiff was wearing dark clothing. The evidence was conflicting regarding the point of impact, the amount of lighting at the scene, and whether defendant was speeding. Thus, we conclude that there was sufficient evidence below to reach the jury on the issue of whether defendant failed to keep a proper lookout and was negligent.

Regarding the issue of plaintiff’s contributory negligence, the evidence shows that plaintiff was not crossing at a crosswalk and therefore had a duty to yield under § 20-174(a). However, our courts have held that the “failure to yield the right-of-way [as required under N.C. Gen. Stat. § 20474(a)] is not contributory negligence per se, but rather that it is only evidence of negligence to be considered with other evidence in the case in determining whether the plaintiff is chargeable with negligence which proximately caused or contributed to his injury.” Dendy v. Watkins, 288 N.C. 447, 456, 219 S.E.2d 214, 220 (1975).

Even though failing to yield the right-of-way to an automobile is not contributory negligence per se, it may be contributory negligence as a matter of law. Meadows v. Lawrence, 75 N.C. App. 86, 330 S.E.2d 47 (1985). “[T]he court will nonsuit . . . when all the evidence so clearly establishes his failure to yield the right of way as one of the proximate causes of his injuries that no other reasonable conclusion is possible.” Ragland v. Moore, 299 N.C. 360, 364, 261 S.E.2d 666, 668 (1980) (quoting Blake v. Mallard, 262 N.C. 62, 65, 136 S.E.2d 214, 216 (1964)). “A rule which by definition requires contributory negligence to be so clear ‘that no other reasonable inference may be drawn therefrom’ will by its nature be satisfied only infrequently and only in extreme circumstances.” Wagoner v. Butcher, 6 N.C. App. 221, 231-32, 170 S.E.2d 151, 158 (1969). In Meadows, we stated that “[i]f the road is straight, visibility unobstructed, the weather clear, and the headlights of the vehicle in use, a plaintiff’s failure to see and avoid defendant’s vehicle will consistently be deemed contributory negligence as a matter of law.” 75 N.C. App. at 89-90, 330 S.E.2d at 50.

Defendant cites Anderson v. Carter, 272 N.C. 426, 158 S.E.2d 607 (1968), and Dendy, where the Court found both plaintiffs con-tributorially negligent as a matter of law. In Anderson, the Court stated that plaintiff was not contributorially negligent as a matter of law in crossing where plaintiff saw defendant 275 to 300 feet away. However, once plaintiff realized defendant was traveling faster than he had previously thought, he continued to walk at the same pace into the path of the car and was contributorially negligent as a matter of law. In Dendy, the plaintiff walked diagonally across a six lane road and was hit by the defendant, who was traveling 30 m.p.h. in a 45 m.p.h. zone, and there was a half mile of unobstructed view. Defendant also cites Price v. Miller, 271 N.C. 690, 157 S.E.2d 347 (1967), where there was a half mile of visibility, and Rosser v. Smith, 260 N.C. 647, 133 S.E.2d 499 (1963), where there was 500 to 600 feet of visibility. In both cases where there was high visibility, the plaintiffs were found contributorially negligent as a matter of law. In Meadows, plaintiff was standing in defendant’s lane when defendant pulled onto the highway from the parking lot 100 to 150 feet away, and the road was straight and the view unobstructed. Though right before impact, defendant was going 43 m.p.h. in a 55 m.p.h. zone, presumably, he was going very slowly at the time he pulled onto the highway. Further, between the time defendant pulled out and the collision, plaintiff took steps toward the center of the road.

Considering all the evidence in the light most favorable to plaintiff, a jury could infer that plaintiff failed to keep a proper lookout. However, from the top of the hill to the bottom of the straight strip of road in front of Townsend, the road continued to curve, and there was an unobstructed view of only 60 to 70 yards. Thus, under the circumstances, we cannot conclusively say that plaintiff was contributorially negligent as a matter of law.

For the reasons above, we conclude that the trial court erred in granting defendant’s motion for a directed verdict.

New trial.

Judge GREENE concurs. Judge Duncan concurred prior to 29 November 1990.