Carter v. Murray

171 S.E.2d 810 (1970)

7 N.C. App. 171

William James CARTER v. John S. MURRAY and Priscilla Ann Benton.

No. 695SC484.

Court of Appeals of North Carolina.

February 4, 1970.

*814 Aaron Goldberg and Herbert P. Scott, Wilmington, for plaintiff appellant.

James, James & Crossley, by John F. Crossley, Wilmington, for defendant appellees.

PARKER, Judge.

Appellant's sole assignment of error is that the trial court erred in granting defendants' motion for nonsuit made at the close of all of the evidence. In passing upon motion for nonsuit, all the evidence which tends to support plaintiff's claim must be taken as true and considered in the light most favorable to plaintiff, giving him the benefit of every reasonable inference which may legitimately be drawn therefrom, and resolving all contradictions, conflicts, and inconsistencies therein in plaintiff's favor. Defendants' evidence which contradicts that of the plaintiff, or tends to show a different state of facts, is disregarded, and only that part of it which is favorable to plaintiff can be considered. Bowen v. Gardner, 275 N.C. 363, 168 S.E.2d 47.

The evidence in the present case, when subjected to these rules, would permit the jury to find the following facts: Plaintiff lived on Taylor Street east of Fourth Street. He went with his wife to the A & P store, which is on the west side of Fourth Street. On leaving the store, they walked to the corner of Fourth and Taylor Streets, where they stood beside the sign post, "right on the sidewalk." There they stopped and looked both ways on Fourth Street, but saw no car approaching. There was no traffic control signal and no marked crosswalk at the intersection. After looking both ways and seeing no car, plaintiff started walking eastward directly across Fourth Street "where everybody crosses that lives on Taylor Street." It was dark, but the intersection was lighted by street lights and by the store sign. When plaintiff was almost all of the way across Fourth Street and was about to step onto the curb on the east side, he was struck by defendants' car, which was proceeding north on Fourth Street "at a good speed." Plaintiff was carried on the hood of the car approximately 45 feet north of the intersection before it came to a stop and threw plaintiff to the pavement. Defendant-driver did not sound her horn and plaintiff did not see the car before it struck him. Defendant-driver did not see plaintiff until after her passenger had first seen him and had called out a warning to her.

From these facts, a reasonable inference could legitimately be drawn that plaintiff was struck by defendants' car while he was crossing Fourth Street within an unmarked crosswalk at an intersection and that defendant-driver had failed to yield the right-of-way to him as required by G.S. § 20-173(a). It would further be a permissible inference that defendant-driver had failed to keep a proper lookout, as she did not see plaintiff until after her passenger had first seen him and called out a warning to her. These permissible findings and inferences would support a jury verdict of actionable negligence on the part of the defendants, and nonsuit was not justified on the ground of insufficiency of the evidence on that issue.

Nor was nonsuit proper on the issue of plaintiff's contributory negligence. Nonsuit on the ground of plaintiff's contributory negligence is proper only if plaintiff's evidence considered in the light most favorable to him, so clearly establishes his own negligence as one of the proximate *815 causes of his injuries that no other reasonable inference may be drawn therefrom. Bowen v. Gardner, supra. Nonsuit may not be entered on the ground of contributory negligence on plaintiff's part if it is necessary for the court to rely on any part of the evidence offered by the defendants. Wells v. Johnson, 269 N.C. 192, 152 S.E.2d 229. Plaintiff's evidence in the present case, when considered in the light most favorable to him, and ignoring defendants' evidence to the contrary, tends to show that plaintiff stopped at the corner of the intersection, looked both ways before starting to cross the street, and then walked straight across the street in an unmarked crosswalk at the intersection and thus had the right-of-way under G.S. § 20-173(a). The evidence further tends to show that he had almost completed the crossing and reached the curb on the other side before he was struck. If these were the facts, then plaintiff was not required to anticipate negligence on the part of others. "In the absence of anything which gave or should have given notice to the contrary, [plaintiff] was entitled to assume and to act upon the assumption, even to the last moment, that others would observe and obey the statute which required them to yield the right of way." Bowen v. Gardner, supra. Even if plaintiff had seen defendants' car approaching, the evidence here shows nothing unusual in the car's approach which would have put plaintiff on notice that the driver did not intend to obey the law and yield the right-of-way to him. True, it was plaintiff's duty, even with the right-of-way, to exercise ordinary care for his own safety. However, on that matter there is evidence to support a finding either way. While the evidence as to whether he continued to maintain a proper lookout throughout the entire time he was crossing is unclear, the evidence in that regard certainly does not so clearly establish negligence on his part that no other reasonable inference can be drawn therefrom.

Defendants' evidence was in sharp conflict with that of the plaintiff, and would indicate that plaintiff was not crossing at an intersection but was at least 45 feet north of the intersection and that, at night in an unlighted area and wearing dark clothing, he stepped directly into the path of defendants' car, which had the right-of-way and was proceeding within its own proper lane of traffic while being driven at a lawful speed and in a careful and prudent manner. However, determination of the true facts from the sharply conflicting evidence was for the jury.

The judgment of involuntary nonsuit is

Reversed.

CAMPBELL and GRAHAM, JJ., concur.