Barbee v. Perry

98 S.E.2d 794 (1957) 246 N.C. 538

Billie James BARBEE
v.
Thomas O. PERRY and wife, Hazel Perry.

No. 669.

Supreme Court of North Carolina.

June 28, 1957.

Arthur Vann, Durham, for plaintiff appellant.

Bryant, Lipton, Strayhorn, & Bryant, Durham, for defendants appellees.

WINBORNE, Chief Justice.

The sole assignment of error presented on this appeal, other than those relating to exceptions to formal matters, is based upon exception to the action of the trial court in granting defendants' motion for judgment as of nonsuit.

In this connection, if it be conceded that the evidence shown in the case on appeal, taken in the light most favorable to plaintiff, as is done in considering its sufficiency to take the case to the jury on the issue as to negligence of defendants, as alleged in the complaint, the testimony of plaintiff clearly shows that he failed to exercise reasonable care for his own safety, under the circumstances, that is, that he was negligent, as a matter of law, and that such negligence contributed to, and was a proximate cause of any injury he sustained. Tysinger v. Coble Dairy Products, 225 N. C. 717, 36 S.E.2d 246; Garmon v. Thomas, 241 N.C. 412, 85 S.E.2d 589.

It is provided by statute, G.S. § 20-174(a) that "Every pedestrian crossing a roadway at any point other than within a marked cross-walk * * * shall yield the rightof-way to all vehicles upon the roadway." Here, though plaintiff saw defendant's automobile approaching, he concedes that in operating the automobile feme defendant was not violating any speed law, and was traveling in the proper lane. And, using plaintiff's language, he "speeded up a little bit and then went on across." He said "I hurried up a little bit because I wanted to get across in front of the oncoming car." Such conduct is not in keeping with the rule of the prudent man. He took his chance, and lost.

Hence the judgment as of nonsuit was properly entered, and is

Affirmed.

JOHNSON, PARKER, and BOBBITT, JJ., dissent.