Troy v. Todd

313 S.E.2d 896 (1984)

John TROY, Administrator of the Estate of Joseph Troy, Deceased, v. George Waitus TODD.

No. 8313DC486.

Court of Appeals of North Carolina.

April 17, 1984.

*897 Stuart V. Carter, Wilmington, for plaintiff. McGougan, Wright & Worley by D.F. McGougan, Jr., Tabor City, for defendant.

WELLS, Judge.

It is well established that a defendant's motion for a directed verdict under N.C. Gen.Stat. § 1A-1, Rule 50(a) of the Rules of Civil Procedure "... tests the legal sufficiency of the evidence to take the case to the jury and support a verdict for the plaintiff.... On defendant's motion for a directed verdict, plaintiff's evidence must be taken as true and all the evidence must be considered in the light most favorable to the plaintiff, giving him the benefit of every reasonable inference to be drawn therefrom." (Citations omitted) Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1977). "Where the question of granting a directed verdict is a close one, the better practice is for the trial judge to reserve his decision on the motion and allow the case to be submitted to the jury." Id.

Defendant's motion asserted two grounds: (1) lack of negligence by defendant; or (2) if defendant was negligent, plaintiff's intestate was contributorily negligent as a matter of law. We first examine the issue of plaintiff's negligence. N.C. Gen.Stat. § 20-174 (1983), provides, in pertinent part,

*898 (d) ... Where sidewalks are not provided, any pedestrian walking along and upon a highway shall, when practicable, walk only on the extreme left of the roadway or its shoulder facing traffic which may approach from the opposite direction. Such pedestrian shall yield the right-of-way to approaching traffic. (e) 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.

Evidence of a violation of G.S. § 20-174 does not constitute negligence or contributory negligence per se, but rather is some proof of negligence, to be considered with the rest of the evidence in the case. Clark v. Bodycombe, 289 N.C. 246, 221 S.E.2d 506 (1976). Every motorist is under duty to exercise due care to avoid colliding with pedestrians on a roadway. Such duty of due care includes to keep a proper look-out, i.e., to look in the direction of travel, to see what is there to be seen. Although the failure of a motorist to stop a vehicle within the range of his headlights or the range of his vision does not constitute negligence per se, see N.C.Gen.Stat. § 20-141(n), (1983), the failure of a motorist to see a person in or upon a roadway at night before striking him constitutes some evidence of negligence. Clark v. Bodycombe, supra.

In Clark v. Bodycombe, supra, plaintiff's evidence showed that the plaintiff was walking beside a city street, but was forced to step down into the street to avoid a car parked in a driveway across her path. The plaintiff stepped into the gutter and was walking around the parked car when she was struck by defendant's vehicle. At the time of the accident, it was dark and a light rain was falling. Defendant testified that he saw only a "shadow dodging traffic" before his car struck the plaintiff. Our supreme court concluded that "... there was ample evidence from which the jury could infer that defendant negligently failed to keep a proper lookout and negligently failed to keep his vehicle under control thereby proximately causing plaintiff's injuries." Because of the similarity of facts, we believe that Clark v. Bodycombe, supra, compels us to hold that there was sufficient evidence that defendant failed to keep a proper lookout to support a finding of negligence in the case at bar. But see Rogers v. Green, 252 N.C. 214, 113 S.E.2d 364 (1960) (insufficient showing of defendant's negligence where pedestrian was dressed in dark blue uniform and white hat and was struck by defendant's car along a rural paved road at night), Thompson v. Coble, 15 N.C.App. 231, 189 S.E.2d 500, cert. denied, 281 N.C. 763, 191 S.E.2d 360 (1972) (insufficient showing of defendant's negligence where defendant was traveling about 30 miles per hour along a rural paved road at night, heard a noise but saw nothing before the collision. The pedestrian was found later, dressed in dark clothes, lying in the ditch off the shoulder of the road).

We turn now to the issue of whether, despite evidence of defendant's negligence, entry of a directed verdict was proper on the ground that plaintiff's intestate's contributory negligence was shown as a matter of law. Evidence tending to show that plaintiff's intestate was walking in the travel lane of the road with his back toward the traffic, in violation of G.S. § 20-174, is some evidence of negligence, but does not constitute contributory negligence per se. Clark v. Bodycombe, supra. As in Bodycombe, we hold that plaintiff's evidence was sufficient to permit "... diverse inferences as to whether plaintiff[`s intestate] acted in a reasonable manner and whether ... [his] acts proximately caused... [his] injuries. Thus, the issue of contributory negligence should have been submitted to the jury." Id. But see Price v. Miller, 271 N.C. 690, 157 S.E.2d 347 (1967), Blake v. Mallard, 262 N.C. 62, 136 S.E.2d 214 (1964), Thornton v. Cartwright, 30 N.C.App. 674, 228 S.E.2d 50 (1976) (different rule in cases involving pedestrians attempting *899 to cross highways at night outside of a crosswalk). This holding is consistent with the general rule that ordinarily it is for the jury to determine from the attendant circumstances what proximately caused an injury.

Reversed.

ARNOLD and BRASWELL, JJ., concur.