Clark v. Bodycombe

Annotate this Case

221 S.E.2d 506 (1976)

289 N.C. 246

Janie M. CLARK v. Abraham BODYCOMBE.

No. 107.

Supreme Court of North Carolina.

January 29, 1976.

*509 Judge Godwin allowed defendant's motion for a directed verdict and plaintiff appealed.

Joseph I. Moore, Jr., and James R. Farlow, by James R. Farlow, Chapel Hill, for plaintiff-appellant.

Haywood, Denny & Miller, by George W. Miller, Jr., Durham, for defendant-appellee.

BRANCH, Justice.

The single question presented by this appeal is whether the trial judge erred by granting defendant's motion for a directed verdict. The Court of Appeals sustained the judgment granting a directed verdict on the premises that: (1) plaintiff failed to show actionable negligence on the part of the defendant and (2) that plaintiff had established her own contributory negligence as a matter of law.

When a defendant moves for a directed verdict pursuant to Rule 50(a), the trial judge must take plaintiff's evidence to be true, consider all the evidence in the light most favorable to plaintiff and give him the benefit of every reasonable inference which may be legitimately drawn therefrom. The motion should be granted only when the evidence is insufficient to support a verdict. Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549; Rayfield v. Clark, 283 N.C. 362, 196 S.E.2d 197; Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297.

In Blashfield Automobile Law and Practice Vol. II § 103.4 it is stated:

The standard of care to be exercised by a motorist is precisely the same regardless of mental or physical ability. Accordingly, physical infirmities, such as those of old age, defective hearing, and defective eyesight are weighed against a driver in case of accident, and a motorist who is partially deaf is required to hear at his peril that which a normal driver would have heard. . . . . . . [T]he conduct of the handicapped individual must be reasonable in the light of his knowledge of his infirmity which is treated merely as one of the circumstances under which he acts . . . In theory the standard remains the same, *510 but it is sufficiently flexible to take his physical defects into account.

W. Prosser, Handbook of the Law of Torts, § 32 at 152 (4th ed. 1971).

Here 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. We, therefore, hold that the evidence in this case was sufficient to permit the jury to decide whether defendant was guilty of actionable negligence.

There remains the question of whether the Court of Appeals properly sustained the trial judge's judgment directing a verdict for defendant on the premise that plaintiff was contributorily negligent as a matter of law. In this connection, defendant argues that the directed verdict should be sustained because there is evidence that at the time of the accident that plaintiff was negligently crossing Rosemary Street at a point not within a marked crosswalk, in violation of G.S. 20-174(a). Taken in the light most favorable to plaintiff the evidence shows no violation of G.S. 20-174(a) at the time of the accident. When considered in the light most unfavorable to the plaintiff the evidence would support an inference that she was injured as she crossed Rosemary Street at a point not within a marked crosswalk. Such opposing inferences present a question for the jury. Bowen v. Gardner, 275 N.C. 363, 168 S.E.2d 47; Stewart v. Gallimore, 265 N.C. 696, 144 S.E.2d 862.

The only remaining ground to support the directed verdict is that plaintiff violated the provisions of G.S. 20-174(d) and that such negligence was a proximate cause of her injuries.

At the time of this accident G.S. 20-174(d) provided:

(d) It shall be unlawful for pedestrians to walk along the traveled portion of any highway except on the extreme left-hand side thereof, and such pedestrians shall yield the right-of-way to approaching traffic.

We note, in passing, that G.S. 20-174(d) was rewritten by the 1973 General Assembly by Chapter 1330 § 33 of the Session Laws effective 1 January 1975.

The general rule is that a directed verdict for a defendant on the ground of contributory negligence may only be granted when the evidence taken in the light most favorable to plaintiff establishes her negligence so clearly that no other reasonable inference or conclusion may be drawn therefrom. Contradictions or discrepancies in the evidence even when arising from plaintiff's evidence must be resolved by the jury rather than the trial judge. Bowen v. Constructors Equipment Rental Co., 283 N.C. 395, 196 S.E.2d 789; Jernigan v. Atlantic Coast Line R. Co., 275 N.C. 277, 167 S.E.2d 269; Bowen v. Gardner, supra; McWilliams v. Parham, 273 N.C. 592, 160 S.E.2d 692; Galloway v. Hartman, 271 N.C. 372, 156 S.E.2d 727.

Ordinarily one who violates the provisions of safety statutes is guilty of negligence per se absent a specific legislative exception. Watson Seafood & Poultry, Inc. v. George W. Thomas, Inc., N.C., 220 S.E.2d 536; Stone v. Texas Co., 180 N.C. 546, 105 S.E. 425. No specific legislative exception appears in this safety statute. However, our Court has consistently held that violations of G.S. 20-174 do not constitute negligence per se. Simpson v. Wood, 260 N.C. 157, 132 S.E.2d 369; Gamble v. Sears, 252 N.C. 706, 114 S.E.2d 677; Moore v. Bezalla, 241 N.C. 190, 84 S.E.2d 817; Simpson v. Curry, 237 N.C. 260, 74 S.E.2d 649; Lewis v. Watson, 229 N.C. 20, 47 S.E.2d 484. In so holding the Court has often pointed to Subsection (e) which provides that "Notwithstanding the provisions of this section, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, . . . ."

*511 Because of their factual similarity to instant case, we will review two of the above-cited cases.

In the case of Lewis v. Watson, supra, plaintiff's intestate was pushing a handcart on the right-hand side of the highway in violation of G.S. 20-174(d) when he was struck from the rear by defendant's vehicle. The usual issues of negligence were submitted to the jury and the jury answered the first issue "No." This Court, in an opinion by Justice Ervin, granted a new trial for errors in the charge but in a dictum statement observed:

It follows that it was the duty of the plaintiff's intestate to push his handcart along the extreme left-hand side of the highway facing the automobile traffic coming on that side when he elected to travel on foot on the highway. G.S., 20-174(d). The fact, however, that he was proceeding unlawfully on the wrong side of the road at the time he was stricken did not render him guilty of contributory negligence as a matter of law upon the record in the case at bar. Both the common law and the statute provide that notwithstanding the provisions of G.S. 20-174(d), "every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway." G.S., 20-174(e); Arnold v. Owens, 78 F.2d, 495. . . .

Our Court considered the same statute in the case of Simpson v. Wood, supra. There the plaintiff was injured while walking on the right-hand side of the highway several feet from the paved portion upon which vehicles traveled. He was struck from the rear by the automobile operated by defendant. The case was submitted to the jury and issues of negligence and contributory negligence were answered in the affirmative. Plaintiff appealed. The Court found error in the trial judge's instructions to the effect that plaintiff did not violate the provisions of G.S. 20-174(d) when he walked on the shoulder and off the paved portion over which vehicles traveled. Nevertheless the Court affirmed on the ground that the instruction was favorable to the plaintiff. In so holding, Chief Justice Denny, writing for the Court, stated:

G.S. 20-174(d) makes it unlawful to walk along the traveled portion of any highway except on the extreme left-hand side thereof. It follows, therefore, that it is unlawful to walk on the right-hand shoulder of a highway along the traveled portion thereof. In view of our decisions, however, interpreting this statute, it is to be left to the jury to consider a violation of the statute as evidence of negligence along with other evidence in determining whether or not the plaintiff contributed to his own injury and was, therefore, guilty of contributory negligence. Bank v. Phillips, 236 N.C. 470, 73 S.E.2d 323; Simpson v. Curry, 237 N.C. 260, 74 S.E.2d 649; Moore v. Bezella, 241 N.C. 190, 84 S.E.2d 817; 4 A.L.R.2d Anno: Pedestrian's Noncompliance With Statute, pages 1253 through 1264.

These holdings are consistent with our rule that when a defendant pleads contributory negligence as bar to plaintiff's recovery, he has the burden of proving by the greater weight of the evidence that plaintiff's negligence was one of the proximate causes of his injury or damages. Watson Seafood & Poultry, Inc. v. George W. Thomas, Inc., supra; Warren v. Lewis, 273 N.C. 457, 160 S.E.2d 305; Jones v. Holt, 268 N.C. 381, 150 S.E.2d 759; Owens v. Kelly, 240 N.C. 770, 84 S.E.2d 163. Further, the cases are also consistent with the well-recognized rule that ordinarily it is for the jury to determine from the attendant circumstances what proximately caused an injury. White v. Mote, 270 N.C. 544, 155 S.E.2d 75; Barefoot v. Joyner, 270 N.C. 388, 154 S.E.2d 543; Farmers Oil Co. v. Miller, 264 N.C. 101, 141 S.E.2d 41.

Taking plaintiff's evidence as true, as we must upon consideration of a motion for a directed verdict, it appears that she was proceeding along a dirt pathway beyond the curb on the north side of Rosemary *512 Street when she was confronted with an automobile blocking a driveway which traversed the path. Thereupon, plaintiff left the dirt path and walked along a gutter between the driveway and the portion of Rosemary Street upon which vehicles ordinarily traveled. She was never more than twelve inches from the north curb of Rosemary Street and just before she reached the curb on the western side of the driveway, she was struck by defendant's automobile.

This evidence permits diverse inferences as to whether plaintiff acted in a reasonable manner and whether her acts proximately caused her injuries. Thus, the issue of contributory negligence should have been submitted to the jury.

The Court of Appeals erroneously affirmed the trial judge's order directing a verdict for defendant. Therefore, the decision of the Court of Appeals is

Reversed and remanded.

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