Sessoms v. Roberson

268 S.E.2d 24 (1980) 47 N.C. App. 573

James H. SESSOMS
v.
William M. ROBERSON.

No. 797SC1116.

Court of Appeals of North Carolina.

July 15, 1980.

Biggs, Meadows, Batts, Etheridge & Winberry by William D. Etheridge and Auley M. Crouch, III, Rocky Mount, for plaintiff-appellant.

Battle, Winslow, Scott & Wiley by Robert L. Spencer, Rocky Mount, for defendant-appellee.

ERWIN, Judge.

The sole issue presented by this appeal is whether the entry of a directed verdict for defendant was appropriate. We say, no.

The legal standard for gauging the evidence on a motion for a directed verdict is well established and hardly needs repeating: "[A]ll evidence which supports plaintiff's claim must be taken as true and viewed in the light most favorable to him, giving him the benefit of every reasonable inference which may legitimately be drawn therefrom, and with contradictions, conflicts and inconsistencies being resolved in his favor." Maness v. Fowler-Jones Construction Co., 10 N.C.App. 592, 595, 179 S.E.2d 816, 818, cert. denied, 278 N.C. 522, 180 S.E.2d 610 (1971). The issue in the case at bar is thus refined to a determination, first, whether the plaintiff has offered sufficient evidence which, considered in accordance with the above test, tends to show that his injuries were proximately caused by the negligence of the defendant, and, nevertheless, whether the evidence establishes as a matter of law that the plaintiff failed to exercise the requisite degree of ordinary care for his own safety. See Ryder v. Benfield, 43 N.C.App. 278, 258 S.E.2d 849 (1979). In our opinion, the evidence is such as to permit different inferences reasonably to be drawn as to each issue and, thus, both questions should have been submitted to the jury.

It cannot be denied that certain duties existing by virtue of statute as well as the common law were imposed upon both plaintiff and defendant under the factual situation present in this case. For example, pertinent provisions of G.S. § 20-174 require pedestrians who cross a roadway "at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection" to yield the right-of-way to all vehicles upon the roadway. Notwithstanding this duty imposed upon the pedestrian, the statute mandates that "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, . ." G.S. § 20-141 also imposes a general standard of due care with respect to speed and requires that a motorist not operate his vehicle "at a speed greater than is reasonable and prudent under the conditions then existing." Obviously, this duty exists notwithstanding that the motorist's actual speed is less than the posted speed limit. See Kolman v. Silbert, 219 N.C. 134, 12 S.E.2d 915 (1941). Moreover, this provision of our highway law requires the motorist to decrease his speed when special hazards exist by reason of weather and highway conditions, to the end that others using the highway may not be injured. Williams v. Tucker, 259 N.C. 214, 130 S.E.2d 306 (1963).

The evidence in this case also clearly implicates the following provisions of G.S. § 20-146:

(a) Upon all [highways] of sufficient width a vehicle shall be driven upon the right half of the highway . . . .

. . . . .

(d) Whenever any street has been divided into two or more clearly marked lanes for traffic, the following rules in addition . . . shall apply.

(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

The purpose of the above-quoted statute is to protect occupants of other vehicles and pedestrians. Powell v. Clark, 255 N.C. 707, 122 S.E.2d 706 (1961). Our Courts have consistently held that the violation of this section constitutes negligence per se, and when it is the proximate cause of injury or damage, such violation is actionable negligence. See, e. g., Reeves v. Hill, 272 N.C. 352, 158 S.E.2d 529 (1968). Whether the violation is the proximate cause of an injury is for the jury to determine. Stephens v. Southern Oil Company of North Carolina, Inc., 259 N.C. 456, 131 S.E.2d 39 (1963). "When a plaintiff suing to recover damages for injuries sustained in a collision offers evidence tending to show that the collision occurred when the defendant was driving to his left of the center of the highway, such evidence makes out a prima facie case of actionable negligence." Anderson v. Webb, 267 N.C. 745, 749, 148 S.E.2d 846, 849 (1966). Of course, the defendant may rebut the inferences arising from such evidence by showing that he was driving on the wrong side of the road for reasons other than his own negligence, but, in such a case, such a showing by the defendant serves merely to raise an issue of credibility for the jury to resolve. See Smith v. Kilburn, 13 N.C.App. 449, 186 S.E.2d 214, cert. denied, 281 N.C. 155, 187 S.E.2d 586 (1972).

In the case before us, all the evidence shows that defendant's car struck the plaintiff to the left of the center line. Indeed, defendant concedes that as a fact. However, he sought to explain that he crossed the center line in an attempt to avoid hitting the plaintiff. In our opinion, this evidence alone, on the authority of Anderson v. Webb and Smith v. Kilburn, supra, is sufficient to require the submission of this case to the jury.

Additionally, we find the evidence, when considered in the light most favorable to the plaintiff, sufficient to raise inter alia the following inferences:

1. That the defendant operated his car at a speed that was greater than was reasonable and prudent under the conditions then and there existing, with respect to weather conditions and possible road construction hazards, in violation of G.S. § 20-141.

2. That the defendant failed to decrease his speed as he approached, entered and transversed an intersection, in violation of G.S. § 20-141.

3. That the defendant failed to decrease his speed as necessary to avoid colliding with a person on or entering the highway, in violation of G.S. § 20-141(m).

4. That the defendant failed to sound his horn to warn the plaintiff of his approach, in violation of G.S. § 20-174(e).

5. That the defendant failed to exercise due care to avoid hitting the plaintiff in that he failed to keep a proper lookout, or to keep his car under proper control.

From these inferences the jury could find that the defendant was negligent and that his negligence was a proximate cause of plaintiff's injuries.

Defendant contends, however, that the evidence establishes as a matter of law that the plaintiff was contributorily negligent so as to bar plaintiff's right to recover. We agree that the evidence is sufficient to raise an inference, among others, that the plaintiff failed to yield the right-of-way and that, without due regard for his own safety, he stepped into the path of the defendant's car. But, as we have shown above, the evidence in this case is such as to raise a number of reasonable inferences. Rational persons could logically draw different conclusions as to whether plaintiff's injuries proximately resulted from the negligence of the defendant or from the plaintiff's contributory negligence. "[O]nly when `all the evidence so clearly establishes [plaintiff's] failure to yield the right of way as one of the proximate causes of his injuries that no other reasonable conclusion is possible,'" Ragland v. Moore, 299 N.C. 360, 369, 261 S.E.2d 666, 671 (1980) [emphasis added] [quoting from Blake v. Mallard, 262 N.C. 62, 136 S.E.2d 214 (1964)], will a directed verdict against the plaintiff be appropriate. In this case the evidence is for the jury as to plaintiff's contributory negligence, if any, as well as defendant's negligence, if any. We cannot imagine a more clear-cut case for the twelve.

The judgment directing a verdict for the defendant is reversed.

Reversed.

PARKER and VAUGHN, JJ., concur.