Smith v. Kilburn

186 S.E.2d 214 (1972) 13 N.C. App. 449

Pauline Parrish SMITH, Administratrix of Weldon Parrish, Deceased
v.
Jimmy Dale KILBURN.

No. 718SC695.

Court of Appeals of North Carolina.

February 2, 1972. Certiorari Denied April 4, 1972.

Herbert B. Hulse, and Sasser, Duke & Brown by John E. Duke, Goldsboro, for plaintiff appellant.

Dees, Dees, Smith & Powell by William W. Smith, Goldsboro, for defendant appellee.

Certiorari Denied by Supreme Court April 4, 1972.

PARKER, Judge.

Considering the evidence in the light most favorable to the plaintiff, as we must in passing upon the trial court's ruling on defendant's motion for a directed verdict, Kelly v. International Harvester Co., 278 N.C. 153, 179 S.E.2d 396, it is our opinion that this case should have been submitted to the jury. Plaintiff was not required to prove all of the acts or omissions which she alleged constituted negligence on the part of defendant; proof of negligence in only one respect was sufficient if it proximately caused the injuries and death of her intestate. Alexander Funeral Home, Inc. v. Pride, 251 N.C. 723, 136 S.E.2d 120; Krider v. Martello, 252 N.C. 474, 113 S.E.2d 924. Inconsistencies in the evidence will ultimately be for the jury to resolve; for present purposes they must be resolved in plaintiff's favor. Bowen v. Gardner, 275 N.C. 363, 168 S.E.2d 47.

Viewing the evidence in the case before us in the light most favorable to plaintiff, resolving contradictions therein in her favor, and giving her the benefit of every reasonable inference which may be drawn therefrom, a jury could legitimately find the following:

While driving his car late at night westwardly on a city street through a residential section, defendant drove across the middle of the street and into the left-hand lane provided for eastbound traffic. In so doing, the left front side of defendant's automobile struck plaintiff's intestate with sufficient force to throw his body up against the left side of the windshield and thence over or off of the car to the edge of the pavement and partially off of the pavement on the south side of the street, inflicting injuries causing his death. This much was established by the physical evidence at the scene. After striking plaintiff's intestate, defendant's car came to a stop, still in the middle of the street and still headed in a westerly direction, but at a slight angle, its front being "more north than the rear." From this it is a legitimate inference that the car had come to its stopped position from a point farther into the left-hand lane. Defendant's car came to a stop on Stronach Avenue at a point approximately 80 feet west of its intersection with Herring Street, a dirt street which enters Stronach Avenue from the south. There were tire marks on the asphalt pavement on Stronach Avenue which extended eastward from the rear wheels of the car back into the area where dirt from Herring Street came over the pavement on Stronach Avenue. From this the jury could legitimately find that defendant had driven his car in the left-hand lane of Stronach Avenue at least from the point where Herring Street intersects. Whether defendant entered Stronach Avenue from Herring Street after stopping on Herring Street, as one of plaintiff's witnesses testified, or from some street farther to the east, as defendant's statement to the police officers would indicate, may ultimately be for the jury to determine. For present purposes the discrepancy is immaterial, since under either version the jury could find that defendant was driving on the left-hand side of the street when he struck plaintiff's intestate.

G.S. § 20-146(a) provides, subject to certain exceptions set forth in the statute, that "[u]pon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway." Violation of this statute is negligence per se which, when it is the proximate cause of injury, constitutes actionable negligence. "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. (Citations omitted.) The defendant, of course, may rebut the inference arising from such evidence by showing that he was on the wrong side of the road from a cause other than his own negligence." Anderson v. Webb, 267 N.C. 745, 148 S.E.2d 846.

Viewing the evidence in the present case in the light most favorable to plaintiff, the jury could legitimately find that defendant violated G.S. § 20-146(a) and that such violation was a proximate cause of the injuries and death of her intestate. Defendant's statement to the officers that he had driven on the left because pedestrians were obstructing his right lane, if accepted as true, may show that he was on the wrong side of the road from a cause other than his own negligence. However, the officers, not the defendant, were presented by the plaintiff as her witnesses, and by examining the officers as to statements which defendant made to them, plaintiff in no way vouched for the credibility of the defendant nor was she or the jury bound to accept his statements as the controlling truth. Even accepting his statements as true, it is our opinion this case should have been submitted to the jury, both on the issue of defendant's actionable negligence and on the issue of plaintiff's intestate's contributory negligence. In our view it was for the jury to determine whether defendant, driving at night on a 26-foot wide paved city street which had four-foot wide dirt shoulders on each side, exercised that degree of care which an ordinarily prudent man would exercise when he drove so far to the left as he did in order to pass the pedestrians who, so he told the patrolman (according to the version most favorable to the plaintiff), were "walking on the right-hand shoulder of the road in the direction he was traveling." Nor do we think the evidence so clearly establishes contributory negligence on the part of plaintiff's intestate as to make this a matter of law; it was still for the twelve.

The judgment directing verdict for defendant and dismissing plaintiff's action is

Reversed.

CAMPBELL and MORRIS, JJ., concur.