Simpson v. Curry

74 S.E.2d 649 (1953) 237 N.C. 260

SIMPSON
v.
CURRY.

No. 20.

Supreme Court of North Carolina.

February 25, 1953.

Robert B. Lowry and John H. Hall, Elizabeth City, for plaintiff, appellant.

LeRoy & Goodwin, Elizabeth City, for defendant, appellee.

DENNY, Justice.

The plaintiff assigns as error the following portion of his Honor's charge to the jury: "Now we have certain laws or rules, as they are called, in our State, for the guidance of people operating motor vehicles upon the public highway, any number of them, and a violation of any one of them by either party would be considered negligence per se, and if such violation, if you find there was any such violation on the part of the plaintiff, becomes the proximate cause of the injury and death complained of, then you would consider that as a bar to the plaintiff's right to recover, if you find that his negligence was solely the cause of his death."

The court thereafter read to the jury the following subsections of G.S. § 20-174:

"(a) Every pedestrian crossing a roadway at any point other than within a marked cross-walk or within an unmarked cross-walk at an intersection shall yield the right of way to all vehicles upon the roadway.

* * * * * *

"(d) It shall be unlawful for pedestrians to walk along the traveled portion of any highway except on the extreme left-hand side thereof, and such pedestrians shall yield the right of way to approaching traffic.

"(e) 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, and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway."

In light of the above instruction, we think the jury was warranted in assuming it to be its duty to find that the plaintiff's intestate was guilty of negligence if it found that he had violated any of the provisions of the above statute. But we have held that a violation of this statute is not negligence per se but only evidence thereof which may be considered with other facts in the case in determining whether the party was guilty of negligence or contributory negligence as charged. Citizens Nat. Bank v. Phillips, 236 N.C. 470, 73 S.E.2d 323; Lewis v. Watson, 229 N.C. 20, 47 S.E.2d 484; Templeton v. Kelley, 215 N.C. 577, 2 S.E.2d 696. See also Hill v. Lopez, 228 N.C. 433, 45 S.E.2d 539; Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239; Groome v. Davis, 215 N.C. 510, 2 S.E.2d 771; Sebastian v. Horton Motor Lines, 213 N.C. 770, 197 S.E. 539, 541. "There is really no distinction, or essential difference, between negligence in the plaintiff and negligence in the defendant, except that in an action like the present, the negligence of the plaintiff is called contributory negligence. Liske v. Walton, 198 N.C. 741, 153 S.E. 318. The criterion for establishing both is the same." Sebastian v. Horton Motor Lines, supra.

In Citizens Nat. Bank v. Phillips, supra, which case involved questions similar to those raised on the present record, Johnson, J., in speaking for the Court, said [236 N.C. 470, 73 S.E.2d 326]: "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 * * *. 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."

It is true the plaintiff is not entitled to recover if her intestate is found to have been guilty of negligence and that such negligence was the proximate cause or one of the proximate causes of his death. However, such negligence, by reason of the reciprocal or correlative duties imposed by G.S. § 20-174 on plaintiff's intestate and the defendant, under the facts and circumstances disclosed on this record, may not be established as a matter of law by merely showing a violation of some provision of the above statute.

For the reasons stated, the plaintiff is entitled to a new trial, and it is so ordered.

New trial.