Anderson v. Carter

158 S.E.2d 607 (1968) 272 N.C. 426

John Albert ANDERSON
v.
James CARTER, Jr.

No. 275.

Supreme Court of North Carolina.

January 12, 1968.

J. Donnell Lassiter and Kennedy, Covington, Lobdell & Hickman, Charlotte, for defendant appellant.

Wardlow, Knox, Caudle & Wade, Charlotte, for plaintiff appellee.

LAKE, Justice.

It is elementary that upon a motion for judgment of nonsuit the evidence of the plaintiff must be taken to be true and must be considered in the light most favorable to him, resolving all contradictions therein in his favor, and giving him the benefit of every inference in his favor which can reasonably be drawn from it. Strong, N. C. Index, Trial, § 21. Obviously, the evidence of the plaintiff, so construed, is ample to support a finding of actionable negligence by the defendant. A judgment of nonsuit on the ground of the plaintiff's contributory negligence can be granted only when the plaintiff's evidence, considered in accordance with the above rule, so clearly establishes his own negligence as one of the proximate causes of his injury that no other reasonable inference or conclusion can be drawn therefrom. Black v. Wilkinson, 269 N.C. 689, 153 S.E.2d 333; Pruett v. Inman, 252 N.C. 520, 114 S.E.2d 360; Bondurant v. Mastin, 252 N.C. 190, 113 S.E.2d 292. Conversely, if the plaintiff's own evidence does admit of no other reasonable conclusion, the defendant is entitled to have his motion for judgment of nonsuit granted and it is error to deny it. Lowe v. Futrell, 271 N.C. 550, 157 S.E.2d 92; Bradham v. McLean Trucking Co., 243 N.C. 708, 91 S.E.2d 891; Garmon v. Thomas, 241 N.C. 412, 85 S.E.2d 589; Sheldon v. Childers, 240 N.C. 449, 82 S.E.2d 396; Edwards v. Vaughn, 238 N.C. 89, 76 S.E.2d 359; Lyerly v. Griffin, 237 N.C. 686, 75 S.E.2d 730.

G.S. § 20-173(a) provides:

"Where traffic control signals are not in place or in operation the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection * * *"

G.S. § 20-174(a) provides:

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

The area included within the lateral boundary lines of Statesville Avenue and the lateral boundary lines of Alma Court, projected across Statesville Avenue, is an intersection within the definition of that term contained in G.S. § 20-38(12). Consequently, the plaintiff was crossing Statesville Avenue at an intersection. This circumstance is not enough, however, to give him the right of way over vehicular traffic on Statesville Avenue. Under the foregoing statutes, the pedestrian crossing any highway, even at an intersection, must yield the right of way to vehicles upon the roadway unless the pedestrian is crossing within either a marked crosswalk or an unmarked crosswalk.

The term "unmarked crosswalk" is not defined in the Motor Vehicle Law and this Court has not defined it heretofore. The term is obviously not coextensive with the term "intersection," for the Legislature has not provided that a pedestrian crossing a highway at an intersection shall have the right of way over vehicles, but has conferred such right of way only upon pedestrians crossing "within an unmarked crosswalk at an intersection." The statutes of many states define the term "unmarked crosswalk" as the area lying between the extensions of the sidewalk lines over a street at an intersection. In Skaff v. Dodd, 130 W.Va. 540, 44 S.E.2d 621, the Supreme Court of West Virginia was faced with the task of defining the term, as used in an ordinance which, like the North Carolina statute, did not contain a definition of it. It said, "A crosswalk whether marked or unmarked is an extension of the sidewalk lines over streets at street intersections." See also Ellis v. Glenn (Ky.), 269 S.W.2d 234, where the Court held a pedestrian was within an unmarked crosswalk when crossing the through street of a T intersection within what would be an extension of the sidewalk lines of the street forming the stem of the T. In Van v. McPartland, 242 Md. 543, 219 A.2d 815, the statute defined a crosswalk as "that portion of a roadway ordinarily included within the prolongation or connection of the lateral lines of sidewalks at intersections." The Maryland Court rejected the contention that this statute permitted pedestrians by common usage to establish a crosswalk elsewhere and thus acquire the right of way over vehicular traffic.

We construe the term "unmarked crosswalk at an intersection," as used in G.S. § 20-173(a) and G.S. § 20-174(a), to mean that area within an intersection which also lies within the lateral boundaries of a sidewalk projected across the intersection. See G.S. § 20-155(c) with respect to a "regular pedestrian crossing."

The diagram of the intersection of Statesville Avenue and Alma Court, prepared by the plaintiff and introduced in evidence as his Exhibit 1, shows no sidewalk on Alma Court. If this be a correct portrayal of the intersection, and for the present purposes we must take it to be so, there is no "unmarked crosswalk" crossing Statesville Avenue at this intersection. In any event, this diagram shows, as his line of travel across Statesville Avenue, a line which is a projection across Statesville Avenue of the center line of Alma Court. We are, therefore, compelled to conclude that the plaintiff's evidence shows conclusively that he was not "within an unmarked crosswalk" when struck by the defendant's automobile.

This is not to say that the plaintiff was acting unlawfully in crossing Statesville Avenue at that point or that he had no right to cross Statesville Avenue on the line which he was following through the intersection. G.S. § 20-173(a) and G.S. § 20-174(a) do not prohibit pedestrians from crossing streets on highways at places other than marked crosswalks or unmarked crosswalks at intersections. There is no showing in this record of any city ordinance affecting the right of the plaintiff to do so at this intersection. If, however, the pedestrian elects to cross a street or a highway at a place which is not a marked crosswalk and not an unmarked crosswalk at an intersection, these statutes require that he yield the right of way to vehicles. Thus, the plaintiff's evidence shows that he did not have the right of way over the oncoming automobile of the defendant.

Before starting to cross Statesville Avenue, the plaintiff saw the lights of the defendant's car at the crest of the hill 275 to 300 feet away, headed south, and underestimated its speed. Under these circumstances, it was not contributory negligence, as a matter of law, for him to start walking across the northbound lane of Statesville Avenue, which he did. However, he testified that he continued to watch the automobile as it traveled down to the intersection and did not take his eyes off it until the instant that it struck him. He further testified that he walked at the same pace from the time he started across the street until he was struck. In that interval, he noted that the car was going faster than he had at first supposed and observed its movement sufficiently to enable him to testify that the car was going 50 to 55 miles per hour on a street where the speed limit was 35 miles per hour. Though he testified that he tried to get out of the way, his evidence shows conclusively that the only effort made by him was to continue walking across the path of the oncoming vehicle at the same pace at which he started to cross the street. He was struck, according to his statement, when within three feet of the west line of Statesville Avenue.

The plaintiff was neither a child nor an elderly person unable to accelerate his pace quickly. He was a 25 year old man, with no physical disability and in full possession of his faculties, taking as true his statement that he had had nothing intoxicating to drink since 3:30 p. m. and inferring therefrom that he was not under the influence of any intoxicant at the time of the accident. The plaintiff's evidence leads inescapably to the conclusion that he could have avoided the collision, either by coming to a stop and yielding the right of way before entering the southbound lane of Statesville Avenue, or by accelerating his pace across it. Without ever taking his eyes off the oncoming vehicle, traveling at a speed substantially above the speed limit, he elected to do neither of these but to continue to walk at the same pace.

In Garmon v. Thomas, supra, this Court reversed a judgment for the plaintiff, holding that the action should have been nonsuited because his testimony showed that he walked across a highway, into the path of an oncoming vehicle, without seeing it. Here, the plaintiff walked into the path of an oncoming vehicle though he saw it approaching at a high rate of speed and did not even accelerate his own pace in order to escape a collision.

In Blake v. Mallard, 262 N.C. 62, 136 S.E.2d 214, this Court affirmed a judgment of nonsuit on the ground of contributory negligence. There, the plaintiff was a 65 year old woman. She walked "normally" across the through street of a T intersection until she observed the oncoming car when it was only 45 feet from her and then began to run in order to cross its path without being struck. Except for the difference in age and sex and the consequent difference in the abilities of the respective plaintiffs to run or jump from a path of danger, and except that the plaintiff in this case at all times saw the approaching vehicle, the facts in this case and those in Blake v. Mallard are substantially similar. These differences in the facts of the two cases are not favorable to the present plaintiff. Sharp, J., speaking for the Court, said in Blake v. Mallard, "The law imposes upon a person sui juris the duty to use ordinary care to protect himself from injury."

Ordinary care surely requires a 25 year old man, under no disability, who observes that he is in the path of an automobile approaching at 50 miles per hour to do more for his own protection than merely walk at the same pace across the path of the automobile, when safety lies only some three or four steps ahead. Under such circumstances, ordinary care requires the young man to jump or run from the path of danger, even though there may be some risk or loss of dignity in that process.

The plaintiff in this case does not derive any benefit from the well established rule that, nothing else appearing, a pedestrian crossing a highway may assume that motorists thereon will conform to and comply with traffic laws, including laws regulating speed. See: Gaskins v. Kelly, 228 N.C. 697, 47 S.E.2d 34; Jones v. Bagwell, 207 N.C. 378, 387, 177 S.E. 170; Blashford, Cyclopedia of Automobile Law and Practice, § 1432. Such presumption ceases when, as here, the pedestrian observes that the oncoming automobile is exceeding the speed limit.

The plaintiff's evidence leads inescapably to the conclusion that he did not use the care for his own safety that an ordinarily prudent man in the same circumstances would have used, and that his failure so to do was one of the proximate causes of his injuries. It was, therefore, error to deny the defendant's motion for judgment of nonsuit. Since we so conclude, we do not reach the questions presented by the defendant's exceptions to the charge of the court to the jury.

The plaintiff filed a motion in this Court for permission to amend his complaint to allege, as further specifications of negligence by the defendant, that the defendant drove his automobile in excess of the posted speed limit of 35 miles per hour, in violation of G.S. § 20-141; that he failed to decrease the speed of his automobile when approaching and crossing an intersection; and that he failed to decrease the speed sufficiently to avoid colliding with the plaintiff. To allow such amendment merely makes the pleading conform to the proof. Obviously, the defendant was not taken by surprise by such proof. He did not object thereto on the ground of variance or otherwise. We have, in our discretion, allowed the motion to amend. See: Rule 20(4), Rules of Practice in the Supreme Court; Stathopoulos v. Shook, 251 N.C. 33, 110 S.E.2d 452. The allowance of this amendment to the complaint does not, however, absolve the plaintiff from the consequences of his own contributory negligence.

Reversed.