Pope v. Deal

249 S.E.2d 866 (1978)

39 N.C. App. 196

Ivan Hoyt POPE, Sr. v. Diane Caster DEAL.

No. 7819SC173.

Court of Appeals of North Carolina.

December 19, 1978.

*868 Woodson, Hudson, Busby & Sayers by Donald D. Sayers, Salisbury, for plaintiff.

Womble, Carlyle, Sandridge & Rice by Allen R. Gitter, William C. Raper, and Joseph T. Carruthers, Winston-Salem, for defendant.

ROBERT M. MARTIN, Judge.

Defendant contends the court erred in instructing the jury that the defendant's failure to sound her horn, in violation of G.S. 20-174, was negligence per se.

In its instructions to the jury regarding negligence of the defendant, the trial court charged the jury as follows:

Now, members of the jury, as I discuss with you the contentions of negligence and contributory negligence, I will tell you when an act or omission would be negligence within itself, or, on the other hand, when the reasonable person test should be applied. * * * * * * As to the duty to sound the horn, that is a statutea safety statute that has been enacted in our law. If you find that she should have sounded her horn at observing this plaintiff on this occasion under these circumstances and failed to do so after she discovered that he was in a position of peril, then if you find that she did that, you would find that that was negligence or a violation of that law and which would be negligence in itself, members of the jury. (Emphasis added.)

The relevant portion of G.S. 20-174 is paragraph (e), which provides as follows:

Notwithstanding the provisions of this section, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, and shall give warning by sounding the horn when necessary, and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.

Our courts have repeatedly and explicitly held that violation of G.S. 20-174 does not constitute negligence per se. In Clark v. Bodycombe, 289 N.C. 246, 221 S.E.2d 506 (1976), the Supreme Court discussed the provisions of G.S. 20-174 and reaffirmed the proper rule that a violation of that statute is not negligence per se, at 251-52, 221 S.E.2d at 510:

Ordinarily one who violates the provisions of safety statutes is guilty of negligence per se absent a specific legislative exception. No specific legislative exception appears in this safety statute (Section 20-174). However, our Court has consistently held that violations of G.S. 20-174 do not constitute negligence per se. (Citations omitted.)

In Moore v. Bezalla, 241 N.C. 190, 84 S.E.2d 817 (1954), the Supreme Court reviewed and approved a portion of a jury charge relating to Section 20-174, and stated at 196, 84 S.E.2d at 822:

In the charge, the judge read to the jury G.S. 20-174, subsections (a), (b), and (e), and followed the reading with this instruction: "I instruct you, gentlemen of the jury, that the violation of that section of the statute would not constitute negligence per se, but would be evidence to be considered along with other evidence of negligence." The foregoing is the basis of plaintiff's exception No. 13. The charge was in accordance with the decisions of this Court, and the exception cannot be sustained. (Citations omitted.)

In Simpson v. Curry, 237 N.C. 260, 74 S.E.2d 649 (1953), the trial court read to the jury subsections (a), (d), and (e) of G.S. 20-174, and the court charged the jury that a violation of this statute was negligence per se. On appeal, the Court reversed and granted a new trial. In reviewing this charge and the statute on appeal, the Supreme Court stated at 262, 74 S.E.2d at 651:

*869 . . . But we have held that a violation of this statute is not negligence per se but only evidence thereof which may be considered with other facts in the case in determining whether the party was guilty of negligence or contributory negligence as charged. (Citations omitted.)

Accord: Simpson v. Wood, 260 N.C. 157, 132 S.E.2d 369 (1963); Gamble v. Sears, 252 N.C. 706, 114 S.E.2d 677 (1960); Lewis v. Watson, 229 N.C. 20, 47 S.E.2d 484 (1948).

In his brief, plaintiff correctly points out that the above cited cases, dealing with the issue of a pedestrian's negligence, consistently held that a violation of the provisions of G.S. 20-174 does not constitute negligence in itself. He argues that the court has not applied the same reasoning to cases when the violation of G.S. 20-174 has been committed by the driver who encounters a pedestrian and has no application to the sanction of G.S. 20-174(e) as it applies to motorists. In support of his argument he cites Williams v. Woodard, 218 N.C. 305, 306, 10 S.E.2d 913 (1940). We quote from that opinion as follows:

The court instructed the jury that it was negligence per se for one to violate "the statute regulating the conduct and operation of motor vehicles on the public highways, and the conduct and behavior of pedestrians using the highways, but the element of proximate cause must also be shown." This instruction was taken from the case of Holland v. Strader, 216 N.C. 436, 5 S.E.2d 311, and is correct as applied to violations of the motor vehicle law, Ch. 407, Public Laws 1937, save and except those provisions which relate to the speed limits mentioned therein, any speed in excess of which constitutes "prima facie evidence that the speed is not reasonable or prudent and that it is unlawful." Sec. 103; Smart v. Rodgers, 217 N.C. 560, 8 S.E.2d 833.

It is true, there is allegation here of excessive speed, but the instruction which defendants assign as error was in reference to alleged violations of the motor vehicle law in driving on the wrong side of the road, Sec. 108, and in failing to warn the plaintiff who was a pedestrian. Sec. 135. These sections were called to the jury's attention immediately following the above instruction, and it is not thought the jury could have understood it as referring to a violation of the speed restrictions set out in Sec. 103. This last section was not mentioned in the charge.

In Williams, supra, plaintiff argues that "the Court specifically held that it was correct to instruct a jury that it was negligence per se for one to violate the motor vehicle statutes which refer to driving on the wrong side of the road . . . `and in failing to warn the plaintiff, who was a pedestrian.'"

While the general rule in North Carolina is that the violation of a safety statute constitutes negligence per se, the application of the general rule to statutes regulating the conduct of pedestrians has been rejected, as evidenced by the cases cited herein. Section (e) of the statute is not excepted from the holding in those cases that a violation of G.S. 20-174 is not negligence per se and a violation of the statute is held to be evidence of negligence only.

Relying upon these well-reasoned opinions we hold that a violation of G.S. 20-174(e) may not be considered negligence per se, and the jury, if they find as a fact that Section (e) of the statute is violated, must consider the violation along with all other facts and circumstances and decide whether, when so considered, the person found guilty of such violation has breached his common law and statutory duty of exercising ordinary care. Of course, this view does not preclude a finding of negligence as a matter of law where the only inference to be drawn from all the facts is that the motorist was negligent. Such finding does not appear warranted in this case.

When the trial court instructed the jury that if the defendant failed to sound her horn that would be negligence in itself, the court usurped one of the functions of the jury. This constitutes prejudicial error which entitles defendant to a new trial.

New trial.

PARKER and ERWIN, JJ., concur.