Anderson v. Mann

176 S.E.2d 365 (1970)

9 N.C. App. 397

Ira ANDERSON v. Michael Bruce MANN and Christine Barnwell Mann.

No. 7019SC422.

Court of Appeals of North Carolina.

September 16, 1970.

Certiorari Denied November 3, 1970.

*366 Ottway Burton, Asheboro, for plaintiff appellant.

Perry C. Henson and Thomas C. Duncan, Greensboro, for defendant appellees.

Certiorari Denied by Supreme Court November 3, 1970.

MORRIS, Judge.

The record does not reveal any motion made at the close of plaintiff's evidence. However, at oral argument counsel entered into a written stipulation, filed as a part of the record, that this Court consider the motion made as a motion for directed verdict. The grounds therefor are set out in the judgment, to wit "that the plaintiff offered no evidence of negligence on the part of the defendant and, even if there were such evidence, the plaintiff's evidence disclosed contributory negligence on the part of the plaintiff."

On appeal from the granting of a motion for directed verdict, we must determine the sufficiency of plaintiff's evidence guided by the same principles applicable in determining the sufficiency of evidence to withstand the former motion for nonsuit under G.S. § 1-183. Musgrave v. Mutual Savings & Loan Ass'n, 8 N.C.App. 385, 174 S.E.2d 820 (1970).

Under the established rules all the evidence tending to support plaintiff's claim must be taken as true and considered in the light most favorable to him, giving him the benefit of every reasonable inference which legitimately may be drawn therefrom, with contradictions, conflicts and inconsistencies therein being resolved in plaintiff's favor. Bowen v. Gardner, 275 N.C. 363, 168 S.E.2d 47 (1969).

If plaintiff's evidence, considered in the light most favorable to him, so clearly establishes his own negligence as one of the proximate causes of his injury that no other reasonable inference can be drawn therefrom, then defendant is entitled to a directed verdict. Bowen v. Gardner, supra.

Plaintiff's evidence tended to show that on the day of the accident the sun was shining, the road was clear but there was snow on the shoulder of the road "where the highway people had pushed it off" "half knee deep". As plaintiff was proceeding down the highway driving his 1952 Buick, the car cut off and "came to a halt" right in front of Stradler's store. It was "over on the right hand side over as far as, next to the snow as you could get" still on the hard surface. The width of the hard surfaced portion at that point was approximately 24 feet. Looking back in the direction from which plaintiff had come, the road was level and one could see about half a mile. At that time at that point on the road there was a double yellow line surrounding a white broken line and the posted speed limit was 45 miles per hour. Plaintiff got out, raised the hood on his left side of the car, and put his hand over the carburetor to try to get the car started. His son, seated in the car, was to mash the starter. This did not work and plaintiff testified: "I said I will walk over to the store and get a bottle of gas and we will pour some gas in the carburetor to see if it will crank. As to whether I started walking across to the store, I turned around and when I turned around that is all I ever remember. When I turned around, I turned around in the direction of the store, faced the store."

On cross-examination plaintiff testified "I never saw the car that hit me. As to you understanding that I said I turned around from the side of the car to walk across the road to get gas, I told my oldest boy, I said, `I will go over there and get a bottle of gas and pour it in the carburetor.' I never did get started to get the gas. I turned around to speak to him and that was the last thing I remember."

Plaintiff's son testified that he was a passenger in his father's car in the front seat. There was no other passenger. When the car stalled, his father got out and raised the hood on the left side and tried to start it. He told his son that he was going to Stradler's store and get a bottle of gas. "He started over. He got far enough for the fenders of the car if *367 you are out in the street that the defendant's car on the left side picked him up." "It picked him up and he slid his wheels 27 feet before he ever got stopped." The witness first saw the defendant's car when it was about 300 feet behind them. He watched it through the rear view mirror until the driver pulled over in the left hand side of the road. "I did not see him when he came back into view there on the left hand side until after he had done hit my father because we didn't have no side mirror on the car." In the opinion of the witness defendant was operating his automobile at a speed of 60 miles per hour.

On cross-examination, he testified that he stepped off the skid marks and they were 27 feet in length and angled a litle bit over toward the driveway to the store on the left hand side of the road. Plaintiff had taken three or four steps. "I didn't see the car hit my father. I saw the car after it had hit my father." Plaintiff was knocked forward some distance and came to rest in "that left hand lane over there with his head toward the edge of the road and his feet toward back to the center of the road, more or less straight across the road." The defendant told the witness that he didn't see the plaintiff.

"Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway." G.S. § 20-174(a).

The uncontradicted evidence is that the plaintiff's vision in the direction from which defendant was approaching was unobstructed for a distance of one-half mile. Plaintiff's son testified that he watched defendant's car approaching from a distance of 300 feet. Plaintiff himself testified that he turned from the car and faced the direction of the store. From his own evidence he had every opportunity to see the approaching vehicle and yield the right-of-way as it was his duty to do.

We do not concede that the uncontradicted evidence tends to show that defendant was traveling 60 miles per hour in a 45 mile-per-hour zone. On the contrary, we are of the opinion that in the light of plaintiff's own evidence that defendant's car left 27 feet of skid marks, the suggestion that he was traveling at a speed of 60 miles per hour is contrary to human experience. See Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246 (1945), and Burgess v. Mattox, 260 N.C. 305, 132 S.E.2d 577 (1963). However, even should we concede that defendant was exceeding the speed limit and should have seen the plaintiff, a reading of plaintiff's evidence leads to the conclusion, as a matter of law, that his own negligent conduct contributed to his injury.

The judgment of the trial tribunal is

Affirmed.

BROCK and GRAHAM, JJ., concur.