Spruill v. Summerlin

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276 S.E.2d 736 (1981)

Joyce Taylor SPRUILL v. William Thomas SUMMERLIN and McCrary Saw & Tool Co., Inc.

No. 806DC686.

Court of Appeals of North Carolina.

April 7, 1981.

*737 Carter W. Jones by Donnie R. Taylor, Ahoskie, for plaintiff-appellant.

Gram & Baker by Ronald G. Baker, Ahoskie, for defendants-appellees.

ARNOLD, Judge.

We disagree with defendants' position that the evidence as presented by plaintiff and the opinion of this Court in Cardwell v. Ware, 36 N.C.App. 366, 243 S.E.2d 915, disc. rev. denied, 295 N.C. 548, 248 S.E.2d 726 (1978), compelled the granting of a directed verdict on the grounds of plaintiff's contributory negligence as a matter of law.

Plaintiff presented evidence that she turned onto Highway # 13 in a steady rain, travelled approximately eight hundred feet, allowed a car to pass going in the opposite direction and attempted to turn left into a driveway. Plaintiff testified that she began giving a signal of her turn to the left about five hundred feet before she reached the driveway, and that she saw no other vehicles as she checked her side and rearview mirrors four times in the eight hundred feet from the intersection to the driveway. Plaintiff stated that the collision occurred after her front wheels were in the driveway, and when the van driven by defendant Summerlin, going in the same direction as plaintiff's car, attempted to pass plaintiff on the left.

Plaintiff presented ample evidence to take the case to the jury on defendants' negligence. Further, plaintiff's evidence does not show contributory negligence as a matter of law. While G.S. 20-154(a) requires that "[t]he driver of any vehicle upon a highway before starting, stopping or turning from a direct line shall first see that such movement can be made in safety"; subsection (d), added in 1973 provides that "[a] violation of this section shall not constitute negligence per se."

Plaintiff's evidence, when considered in the light most favorable to her, as the non-moving party, raises an inference that defendant was negligent under the prevailing conditions. Because of the steady rain, coupled with plaintiff's testimony concerning her turn signal and use of the mirrors, it may reasonably be inferred that defendant Summerlin was driving at an excessive rate of speed, or failed to keep a proper lookout.

Plaintiff's evidence does not establish that she failed to ascertain that the turn could be made safely and therefore was contributorily negligent as a matter of law; but, rather provides questions for the trier of fact as to whether plaintiff violated G.S. 20-154 and was contributorily negligent. The burden of proving contributory negligence lies with the defendant. Mintz v. Foster, 35 N.C.App. 638, 242 S.E.2d 181 (1978).

*738 Since a violation of G.S. 20-154 is no longer to be considered negligence per se, the jury, if they find as a fact the statute was violated, must consider the violation along with all other facts and circumstances and decide whether, when so considered, the violator has breached his common law duty of exercising ordinary care.

Mintz v. Foster, 35 N.C.App. at 641-2, 242 S.E.2d at 184.

Under the facts of this case, the trial judge erred in granting defendants' motion for a directed verdict.

Reversed.

WELLS and HILL, JJ., concur.