Wanner v. Alsup , 265 N.C. 308 ( 1965 )

144 S.E.2d 18 (1965) 265 N.C. 308

Raymond A. WANNER, Executor of the Estate of Alice H. McNiel, Deceased,
v.
Raymond P. ALSUP.

No. 111.

Supreme Court of North Carolina.

September 22, 1965.

Meekins, Packer & Roberts, by William C. Meekins, Asheville, for plaintiff.

Van Winkle, Walton, Buck & Wall, by O. E. Starnes, Jr., Asheville, for defendant.

DENNY, Chief Justice.

The appellant assigns as error the ruling of the court below in granting the defendant's motion for judgment as of nonsuit at the close of plaintiff's evidence, on the ground that such evidence established the contributory negligence of plaintiff's testatrix as a matter of law.

The real question for determination is whether or not the plaintiff's evidence was sufficient to carry the case to the jury on the issues of negligence, contributory negligence, last clear chance, and damages, which issues were raised by the pleadings.

The mere fact that plaintiff's testatrix attempted to cross Valley Street at a point other than a crosswalk is not sufficient, standing alone, to support a finding of contributory negligence as a matter of law. This Court, in Citizens National Bank v. Phillips, 236 N.C. 470, 73 S.E.2d 323, in construing subsections (a) and (e) of G.S. § 20-174 in connection with this question, said:

"Here, the evidence discloses that the intestate was crossing the street diagonally within the block, at a point which was neither at an intersection nor within a marked crosswalk, and the evidence discloses no traffic control signals at the adjacent intersections. Therefore, under the provisions of G.S. § 20-174(a) it was intestate's duty to ``yield the right-of-way to all vehicles upon the roadway.'

"If it be conceded that the intestate failed to yield the right of way as required by this statute, even so, it was the duty of the defendant, both at common law and under the express provisions of G.S. § 20-174(e), to ``exercise due care to avoid colliding with' the intestate. * * *

"Nor may the evidence tending to show that intestate failed to yield the right of way as required by G.S. § 20-174(a) be treated on this record as amounting to contributory negligence as a matter of law, particularly so in view of the testimony to the effect that intestate at the time he was struck had reached a point about 10 feet from the west curb of the street. Our decisions hold that a failure so to yield the right of way is not contributory negligence per se, but rather that it is evidence of negligence to be considered with other evidence in the case in determining whether the actor is chargeable with negligence which proximately caused or contributed to his injury. (Citations omitted.)"

Likewise, in Williams v. Henderson, 230 N.C. 707, 55 S.E.2d 462, this Court said:

"While a driver of a motor vehicle is not required to anticipate that a pedestrian seen in a place of safety will leave it and get in the danger zone until some demonstration or movement on his part reasonably indicates that fact, Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246, he must give warning to one on the highway or in close proximity to it, and not on a sidewalk, who is apparently oblivious of the approach of the car or one whom the driver in the exercise of ordinary care may reasonably anticipate will come into his way. Trainor's Adm'r v. Keller, 257 Ky. 840, 79 S.W.2d 232.

"It is his duty to sound his horn in order that a pedestrian unaware of his approach may have timely warning. If it appears that the pedestrian is oblivious for the moment of the nearness of the car and of the speed at which it is approaching, ordinary care requires him to blow his horn, slow down, and, if necessary, stop to avoid inflicting injury. (Citations omitted.)

"He must make certain that pedestrians in front of him are aware of his approach. 2 Blashfield's Cyclopedia of Automobile Law and Practice, Perm. Ed., § 1242, page 370. * * *"

The appellee relies heavily upon Blake v. Mallard, 262 N.C. 62, 136 S.E.2d 214, to support the ruling of the court below. This case is readily distinguishable from the instant case. The facts in the Blake case were, in effect, that plaintiff, a colored woman, dressed in dark clothing, attempted to cross a six-lane highway, at night, at a point other than a crosswalk. The defendant's car was observed some 200 yards away, traveling in plaintiff's direction, at an estimated speed of 60 miles per hour. When plaintiff was in the fourth lane, she observed defendant's car 45 feet away and began to run, but was struck by defendant's car. Nonsuit of plaintiff was properly affirmed by this Court because it was not shown by the evidence that plaintiff was oblivious to defendant's approaching car. In fact, the evidence was to the contrary. Moreover, there was no evidence tending to show that defendant had notice in time and an opportunity to avoid striking plaintiff.

The plaintiff's evidence in the instant case was to the effect that testatrix was plainly visible for "a long distance," but that defendant made no attempt to avoid striking her or to warn her of his approach; nor did he slow down, stop, or try to turn away from the testatrix when he came in close proximity to her when she had reached within a very short distance of the curb on the eastern side of the street.

A plaintiff may not recover on the orginal negligence of a defendant if the jury should find that plaintiff was guilty of contributory negligence. However, "The contributory negligence of the plaintiff does not preclude a recovery where it is made to appear that the defendant, by exercising reasonable care and prudence, might have avoided the injurious consequences to the plaintiff, notwithstanding plaintiff's negligence; * * *." Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E.2d 337, and cited cases.

"The doctrine of last clear chance is the humane rule of law that imposes upon a person the duty to exercise ordinary or due care to avoid injury to another who has negligently placed himself in a situation of danger, and who he can reasonably apprehend is unconscious thereof or is unable to avoid the danger." Strong's North Carolina Index, Vol. III, Negligence, § 10, page 456, where numerous cases on the subject are cited.

In our opinion, the plaintiff's evidence was sufficient to carry the case to the jury on the issues hereinabove set out and the court below committed error in sustaining defendant's motion for judgment as of nonsuit, and we so hold.

Reversed.