Oxendine Ex Rel. Oxendine v. Lowry

133 S.E.2d 687 (1963) 260 N.C. 709

Ertle OXENDINE, by his Next Friend, Pearl Oxendine,
v.
Bronford LOWRY.

No. 741.

Supreme Court of North Carolina.

December 19, 1963.

Ellis E. Page, Lumberton, for defendant appellant.

McLean & Stacy, Lumberton, for plaintiff appellee.

PARKER, Justice.

Defendant offered evidence. Considering plaintiff's evidence in the light most favorable to him and giving him the benefit of every reasonable inference to be drawn therefrom, and considering so much of defendant's evidence as is favorable to him, the court properly submitted the case to the jury, and defendant's assignment of error to the court's denial of his motion for judgment of compulsory nonsuit made at the close of all the evidence is overruled. G.S. § 1-183; Rosser v. Smith, 260 N.C. 647, 133 S.E.2d 499.

Defendant in his answer alleged a conditional plea of contributory negligence on plaintiff's part to bar recovery. Among the various acts of alleged negligence by plaintiff, which defendant avers contributed proximately to his injuries, is the allegation that plaintiff was negligent in operating his bicycle in the nighttime and more than a half hour after sunset on Rural Paved Road #1513 without having his bicycle equipped with a lighted lamp on the front thereof, visible under normal atmospheric conditions from a distance of at least three hundred feet in front of his bicycle, and without having his bicycle equipped with a reflex mirror or lamp on the rear, exhibiting a red light visible under like conditions from a distance of at least two hundred feet to the rear of such bicycle, in violation of G.S. § 20-129(e).

Plaintiff's evidence shows that on this occasion his bicycle was not equipped with a lighted lamp on the front thereof when he was struck.

The court in its charge in respect to the second issue of contributory negligence of plaintiff stated ipsissimis verbis G.S. § 20-129(e), and immediately thereafter charged the jury as follows, which appellant assigns as error:

"And so that statute requires that a bicycle when used or operated at night, shall have a lighted light on the front, visible under normal atmospheric conditions, from a distance of at least 300 feet in front of the bicycle. With respect to that portion, gentlemen, and I understand it is admitted by plaintiff in his testimony that he had no lighted lamp upon the front of his bicycle, and I instruct you that the provision respecting a front lamp on a bicycle, is designed for the benefit of those approaching a bicycle from the front, for the protection of the cyclist from such. It does not require a light of such intensity as to render objects visible along the highway in front of a bicycle, and the violation of the statute in respect to failing to have a headlight as required by the law, I instruct as a matter of law would not be a proximate cause of a collision resulting from plaintiff being struck in the rear, as alleged in this action."

It is a fundamental principle that the only negligence of legal importance is negligence which proximately causes or contributes to the injury under judicial investigation. McNair v. Richardson, 244 N.C. 65, 92 S.E.2d 459; Cox v. Hennis Freight Lines and Matthews v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25; Smith v. Whitley, 223 N.C. 534, 27 S.E.2d 442; Byrd v. Express Co., 139 N.C. 273, 51 S.E. 851.

We take judicial notice of the fact that in North Carolina about 8:15 p. m. on 4 June 1961 was within the period of time from a half hour after sunset to a half hour before sunrise. Weavil v. Myers, 243 N.C. 386, 90 S.E.2d 733; 31 C.J.S. Evidence § 100, p. 700.

Under G.S. § 20-38(ff) of our Motor Vehicles Act, bicycles are "deemed vehicles, and every rider of a bicycle upon a highway shall be subject to the provisions of this article applicable to the driver of a vehicle except those which by their nature can have no application." Tarrant v. Pepsi-Cola Bottling Co., 221 N.C. 390, 20 S.E.2d 565; Van Dyke v. Atlantic Greyhound Corp., 218 N.C. 283, 10 S.E.2d 727.

"The statutes prescribing lighting devices to be used by motor vehicles operating at night (G.S. §§ 20-129 and 129.1) were enacted in the interest of public safety. State v. Norris, 242 N.C. 47, 86 S.E.2d 916. A violation of these statutes constitutes negligence as a matter of law." Scarborough v. Ingram, 256 N.C. 87, 122 S.E.2d 798.

What is the proximate cause of an injury is ordinarily a question to be determined by the jury as a fact in view of the attendant circumstances. Ervin v. Cannon Mills Co., 233 N.C. 415, 64 S.E.2d 431; Hoke v. Atlantic Greyhound Corp., 226 N.C. 692, 40 S.E.2d 345. When more than one legitimate inference can be drawn from the evidence, the question of proximate cause is to be determined by the jury. Lincoln v. Atlantic Coast Line R. R., 207 N.C. 787, 178 S.E. 601. "It is only when the facts are all admitted and only one inference may be drawn from them that the court will declare whether an act was the proximate cause of an injury or not. But that is rarely the case." Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 29 S.E.2d 740.

It would seem that the trial judge in giving the challenged part of the charge quoted above followed Spence v. Rasmussen, 190 Or. 662, 226 P.2d 819. This was an action to recover damages for death of a bicyclist when an overtaking truck collided with his bicycle. The collision occurred 26 January 1948 about the hour of 6:10 a. m. in Jackson County, Oregon, on U. S. Highway 99. The sun rose at 7:20 a. m. that day. The weather was clear and the pavement was dry. There was evidence the bicycle was equipped with an ordinary bicycle front lamp (electric) and with a red reflector on the rear, but that the front lamp on the bicycle was not burning. Section 115-368, O.C.L.A., as amended by ch. 16, Oregon Laws 1947, provided: "(b) * * * Every bicycle shall be equipped with a lamp on the front exhibiting a white light visible from a distance of at least 500 feet to the front of such bicycle, and with a red reflector on the rear, and of such size or characteristics and so mounted as to be visible at night from all distances within 300 feet to 50 feet from the rear of such bicycle. A red light visible from a distance of 500 feet to the rear may be used in addition to the rear reflector." The Court said:

"This provision respecting a front lamp on a bicycle is designed for the benefit of those approaching a bicycle from the front and for the protection of the bicyclist from such. It in no way requires a light of such intensity as to render objects visible along the highway in front of the bicycle. The red reflector is designed to protect the bicyclist from vehicles approaching from the rear and to give notice to such vehicles of the presence of the bicycle ahead. The installation of a red light on the rear of a bicycle is permissive and not mandatory. The statute contemplates that the red reflector on the rear of the bicycle will show up in the rays of light from the front lamps on the motor vehicle approaching from the rear in time to prevent mishap.

"The requirements of the statute respecting front lamps on motor vehicles have entirely different purposes than the statute respecting bicycle lamps. The front lights on motor vehicles are designed to render visible not only the road ahead and each side thereof, but also persons and objects thereon in the path of the vehicle.

* * * * * *

"There is no evidence in this record that if the front lamp on this bicycle had been burning it could have been better seen by one operating a motor vehicle from the rear, nor is there any evidence from which such inference might reasonably be drawn. * * *

"Ordinarily, the question of proximate cause must be submitted to the jury for determination, but where, as here, the facts respecting the front lamp on the bicycle are not disputed, we may, and do, hold as a matter of law that the violation of the statute in question by decedent was not a proximate cause nor contributing proximate cause of the accident in question."

In the case of Flynn v. Kumamoto, 22 Cal. App. 2d 607, 72 P.2d 248, 249, the California Court of Appeals construed a statute of that State respecting front lamps on bicycles of almost identical language to that found in the statute of North Carolina. In that case plaintiff, a minor age about fourteen years, was riding his bicycle on the highway when it was dark, and tied to his bicycle was another bicycle ridden by his brother, a minor fifteen years old. The two bicycles were separated by a distance of about five feet. Both bicycles were equipped with red reflectors, although neither had headlights. Plaintiff was struck from the rear by defendants' sedan automobile and injured. Defendants contend plaintiff was guilty of contributory negligence as a matter of law in riding an unlighted bicycle upon a public highway at night. Respecting this contention, the California Court, after quoting the statute above referred to, said:

"Inasmuch as the bicycles were equipped with red reflectors, which was not disputed, and were visible at a distance of 200 feet when directly in front of a motor vehicle as was established by evidence, it is immaterial in this case that such bicycles were not equipped with a headlight, as the absence of that light did not proximately contribute to the cause of the accident, the absence of such a light not in any manner contributing to the accident. Greeneich v. Knoll, 73 Cal. App. 1, 238 P. 163."

Plaintiff's evidence, in fact all the evidence, is that plaintiff was riding his bicycle on the highway at night without a lamp of any kind on the front thereof. This was a violation of G.S. § 20-129(e), and was negligence per se.

G.S. § 20-129(e) requires that "[e]very bicycle shall be equipped with a lighted lamp on the front thereof, visible under normal atmospheric conditions from a distance of at least three hundred feet in front of such bicycle, * * * when used at night." This is entirely different from the requirement for motor vehicles, when used at night as set forth in G.S. § 20-131 (a): "The head lamps of motor vehicles shall be so constructed, arranged, and adjusted that, except as provided in subsection (c) of this section, they will at all times mentioned in § 20-129, and under normal atmospheric conditions and on a level road, produce a driving light sufficient to render clearly discernible a person two hundred feet ahead * * *."

Plaintiff's evidence tends to show that he had a reflex mirror on the rear of his bicycle in conformity with the requirements of G.S. § 20-129(e). There is no evidence in the record that if plaintiff's bicycle had been equipped with "a lighted lamp on the front thereof," as required by G.S. § 20-129(e), it would have been visible at all to a person approaching the bicycle with an automobile from the rear. "In the absence of some probable causal connection, bald negligence per se can raise no presumption of proximate cause: it may be wholly innocent." Tendoy v. West, 51 Idaho 679, 9 P.2d 1026. "Proximate cause is an inference of fact, to be drawn from other facts and circumstances. If the evidence be so slight as not reasonably to warrant the inference, the court will not leave the matter to the speculation of the jury." Conley v. Pearce-Young-Angel Co., supra; Brown v. Kinsey, 81 N.C. 245. In our opinion, and we so hold, the admitted fact that plaintiff's bicycle had no lighted light on the front thereof, considered in connection with the fact that there is no evidence in the record that if the bicycle had been equipped with a lighted lamp in accord with the statutory requirement, it would have been visible at all to a person approaching the bicycle with an automobile from the rear, permits only one legitimate inference to be drawn, and that is that the absence of a lighted lamp on plaintiff's bicycle was not a proximate cause or a contributing proximate cause of plaintiff's injuries. To hold otherwise "would unloose a jury to wander aimlessly in the fields of speculation." Poovey v. International Sugar Co., 191 N.C. 722, 133 S.E. 12. Under the facts disclosed by the record in the instant case, the assignment of error to the challenged part of the charge quoted above is overruled.

The jury, under the application of wellsettled principles of law, resolved the issues of fact against the defendant. A careful examination of all the other assignments of error discloses no new question or feature requiring extended discussion.

This appears in the charge of the court:

"The parties have agreed that the question of responsibility of Hazel Cribb, owner of the automobile driven by the defendant, Bronford Lowry, should not be submitted to you, her responsibility, if any, being derivative or arising out of the relation or connection, if any, between her and Bronford Lowry and you are not concerned with separate responsibility of Hazel Cribb at this time."

The record does not disclose what judicial determination, if any, has been made in respect to the responsibility of Hazel Cribb. Neither reversible nor prejudicial error has been made to appear. The verdict and judgment against Bronford Lowry will be upheld.

No error.