Whitley v. Harding

BROCK, Judge.

On direct examination plaintiff testified as follows: “I came out to where the cars were sitting and looked down Fifth Street both ways. I didn’t see anything coming so I attempted to go across the street. I started and I attempted to go across Washington and Fifth Streets, and when I got in the center, that is when the car hit me.” Still on direct examination, she testified: “I was already out in the center of Fifth Street, all the way out there, when I first saw the defendant approaching. Yes, I saw him coming for some little distance before he got to me, he was running fast.” And again on direct examination she testified: “I say I saw the car at least half a block away. I would estimate it was about half a block I saw it but I was already out then.”

Apparently when plaintiff “came out to where the cars were sitting” she could see up and down Fifth Street. She said she looked both directions on Fifth Street and saw nothing coming. There is no evidence to indicate that her view up and down Fifth Street was limited after she moved out “to where the cars were sitting.” All of her evidence shows that defendant was in fact approaching the intersection on Washington Street, and the reasonable inference is that plaintiff failed to see what she should have seen before she undertook to traverse the intersection.

We think plaintiff’s conduct falls within the rule of Clayton v. Rimmer, 262 N.C. 302, 136 S.E. 2d 562. Here also we think plaintiff failed to see that which she should have seen, and in so failing she was contributorily negligent.

The directed verdict for defendant is

Affirmed.

Judges Morris and Vaughn concur.