Thornton v. Cartwright

228 S.E.2d 50 (1976)

30 N.C. App. 674

L. M. THORNTON, Administrator of the Estate of Frederick Odect Thornton v. Anthony Bruce CARTWRIGHT and Bruce Norman Cartwright.

No. 761SC316.

Court of Appeals of North Carolina.

September 15, 1976.

*51 Moore & Moore by Milton E. Moore, Williamston, and John H. Harmon, New Bern, for plaintiff-appellant.

LeRoy, Wells, Shaw, Hornthal, Riley & Shearin, P.A., by L. P. Hornthal, Jr., Elizabeth City, for defendant-appellee.

ARNOLD, Judge.

When the defendant moves for a directed verdict, the evidence must be considered in the light most favorable to the plaintiff. So considered, the evidence tends to show that defendant was traveling south at 70 m. p. h., at night, in the proper lane, when he struck plaintiff's decedent. The road was level and straight for a distance of at least three-tenths of a mile north from the point of the impact, nothing obstructed the view to the north, and defendant's headlights were burning. Finally, the evidence shows that plaintiff's decedent walked perhaps twelve or fifteen feet west across the road and into the path of defendant's automobile and that decedent was not in a pedestrian crosswalk at the time of the accident.

*52 In the case of Price v. Miller, 271 N.C. 690, 157 S.E.2d 347 (1967), the defendant was driving 60 m. p. h. in a 55 m. p. h. zone at night with her headlights burning. She had come one-half mile down a straight and level stretch of road when she struck plaintiff's intestate who was crossing the road outside of any crosswalk. The court concluded that there was a case for the jury on defendant's negligence, but even so plaintiff was guilty of contributory negligence as a matter of law. Our Supreme Court reasoned as follows:

"If defendant were negligent in not seeing plaintiff's intestate, who was dressed in dark clothes, in whatever length of time he might have been in the vision of her headlights, then plaintiff's intestate must certainly have been negligent in not seeing defendant's vehicle as it approached, with lights burning, along the straight and unobstructed highway. We must conclude that plaintiff's intestate saw defendant's automobile approaching and decided to take a chance of getting across the road ahead of it, or in the alternative, that he not only failed to yield the right of way to defendant's automobile, but by complete inattention started across the highway without looking. In any event . . . plaintiff's intestate's negligence was at least a proximate cause of his death." 271 N.C. at 696, 157 S.E.2d at 351.

Following Price, we hold that even if defendant was negligent in failing to see and avoid plaintiff's decedent, plaintiff's decedent was also contributorily negligent as a matter of law in failing to see and avoid defendant. The motion for directed verdict was correctly granted.

Affirmed.

BROCK, C. J., and PARKER, J., concur.