Holloway Ex Rel. Holloway v. Holloway

136 S.E.2d 559 (1964) 262 N.C. 258

James Eddie HOLLOWAY, by his next friend, Mrs. Izolia Blake Holloway,
v.
Rosa HOLLOWAY.
James Eddie HOLLOWAY, Sr.
v.
Rosa HOLLOWAY and husband, Connie Holloway.

No. 672.

Supreme Court of North Carolina.

June 12, 1964.

Everett, Everett & Everett, Durham, for plaintiff appellants.

Bryant, Lipton, Bryant & Battle, Durham, for defendant appellees.

DENNY, Chief Justice.

The only assignment of error is based on an exception to the ruling of the court below sustaining defendants' motion for judgment as of nonsuit.

In our opinion, if it be conceded that defendant Rosa Holloway was guilty of actionable negligence, it is equally clear that the minor plaintiff contributed to his own injury by negligently and carelessly entering the street without taking any precaution whatever for his own safety.

It clearly appears from the evidence introduced in the trial below that the minor plaintiff never looked in the direction from which the Holloway car was approaching after he left the front steps of the Birdland Inn, whether such Inn is 15, 20 or 30 feet south of Pettigrew Street. Moreover, according to the evidence of the witness Barbara Jean Council Clemmons, who was sitting on the front fender of a car parked on the south side of the street in front of the Birdland Inn she saw the Holloway car approaching when the minor plaintiff ran in front of her between two parked cars and into the street. Furthermore the plaintiff testified that one could see at least three blocks to the east from the curb in front of the Birdland Inn. The facts compel the view that the Holloway car was visible to him at the time he entered the street, if he had looked. "There are none so blind as those who have eyes and will not see * *." Furst & Thomas v. Merritt, 190 N.C. 397, 130 S.E. 40.

In Blake v. Mallard, 262 N.C. 62, 136 S.E.2d 214, Sharp, J., speaking for the Court, said: "The failure of a pedestrian crossing a roadway at a point other than a crosswalk to yield the right of way to a motor vehicle is not contributory negligence per se; it is only evidence of negligence. Landini v. Steelman, 243 N.C. 146, 90 S.E.2d 377. However, the court will nonsuit a plaintiff-pedestrian on the ground of contributory negligence 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. Gamble v. Sears, 252 N.C. 706, 114 S.E.2d 677; Barbee v. Perry, 246 N.C. 538, 98 S.E.2d 794; Garmon v. Thomas, 241 N.C. 412, 85 S.E.2d 589; Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246.

"The law imposes upon a person sui juris the duty to use ordinary care to protect himself from injury. It was plaintiff's duty to look for approaching traffic before she attempted to cross the highway. Having started, it was her duty to keep a lookout for it as she crossed. Rosser v. Smith, 260 N.C. 647, 133 S.E.2d 499. Having chosen to walk diagonally across a six-lane highway, vigilance commensurate with the danger to which plaintiff had exposed herself was required of her."

It is manifest from the minor plaintiff's evidence, which is all the evidence adduced in the trial below, that his negligence was at least one of the proximate causes of his injury. No other conclusion can reasonably be drawn. Consequently, the judgment as of nonsuit will be upheld.

Affirmed.