Court of Appeals of North Carolina, 1991

McNeil v. Gardner

McNeil v. Gardner
Court of Appeals of North Carolina · Decided December 17, 1991 · Eagles, Greene, Hedrick
104 N.C. App. 692; 411 S.E.2d 174; 1991 N.C. App. LEXIS 1107

McNeil v. Gardner

Opinion of the Court

HEDRICK, Chief Judge.

The trial judge clearly directed a verdict for defendant because he felt that the evidence disclosed plaintiff’s intestate’s negligence as a matter of law. When plaintiff argued to the trial court that the issue of defendant’s negligence and the issue of last clear chance had not been ruled on, the court stated “I am not going to let it go to the jury on that ... I am going to let the Court of Appeals decide this issue before we do that.”

We hold the trial judge erred in not submitting to the jury the issues of negligence and contributory negligence. When the evidence is considered in the light most favorable to the plaintiff it is sufficient to raise the issue of negligence on the part of defendant in the operation of his motor vehicle which struck and killed plaintiff’s intestate.

From the evidence, the jury could find that defendant operated^ his motor vehicle without keeping a proper lookout, at an excessive and unlawful rate of speed under the circumstances, that he failed to decrease the speed of his motor vehicle as he approached an intersection, and that he failed to see plaintiff’s intestate and her daughter as they crossed approximately thirty feet of the travel portion of Highway 74 directly in front of his motor vehicle before the accident. From the evidence, the jury could find that one or more of these negligent acts upon the part of defendant was a proximate cause of death of plaintiff’s intestate.

*696Defendant, citing and relying on Meadows v. Lawrence, 75 N.C. App. 86, 330 S.E.2d 47, affirmed, 315 N.C. 383, 337 S.E.2d 851 (1985), states in his brief “the language of the North Carolina Court of Appeals in a case very similar to the factual situation in the case at bar where summary judgment was granted in favor of a defendant on the grounds that the plaintiff’s intestate was contributorily negligent as a matter of law is instructive.” [Emphasis ours]. The facts in Meadows, characterized by defendant as “very similar” were as follows: The defendant pulled out of a bowling alley parking lot onto Highway 64 West, passed a car going in the opposite direction, and a second or two later saw the plaintiff in the middle of his traffic lane at a distance of about 50 to 70 feet. The defendant swerved to the left and applied his brakes. The plaintiff, in an intoxicated condition, staggered one or two steps at a 45 degree angle towards the center of the highway. The middle portion of the bumper of the defendant’s car struck the plaintiff, and the accident occurred in the left center of defendant’s lane of travel.

The facts in the present case are hardly similar. Plaintiff’s intestate was not intoxicated, defendant, although he had a straight and level stretch of roadway, did not even see her or her daughter e'ven though they were wearing bright clothing and had crossed approximately 30 feet of the travel portion of the highway before plaintiff’s intestate was killed. Certainly plaintiff’s intestate did not stagger back to the middle of the lane in which she was struck and obviously, since defendant did not see her, he did not swerve to avoid her as did the defendant in Meadows.

We also hold the trial court erred in directing a verdict for defendant on the grounds that plaintiff’s intestate’s contributory negligence was a bar to the claim as a matter of law.

‘[T]he 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 by the trial judge. [Citations omitted]’ Clark v. Bodycombe, 289 N.C. 246, 251, 221 S.E.2d 506, 510 (1976). Accord, Rappaport v. Days Inn, 296 N.C. 382, 250 S.E.2d 245 (1979).

*697Helvy v. Sweat, 58 N.C. App. 197, 199, 292 S.E.2d 733, 734-35, disc. review denied, 306 N.C. 741, 295 S.E.2d 477 (1982). Our courts have held that a pedestrian’s failure to yield the right of way as dictated by G.S. 20-174(a) is not contributory negligence per se, but is only evidence of negligence to be considered with other evidence in the case in determining whether the plaintiff is chargeable with negligence which proximately caused or contributed to his injury. Dendy v. Watkins, 288 N.C. 447, 219 S.E.2d 214 (1975). “[T]he court will only nonsuit . . . when all the evidence so clearly establishes his failure to yield the right of way as one of the proximate causes of his injuries that no other reasonable conclusion is possible.” Ragland v. Moore, 299 N.C. 360, 364, 261 S.E.2d 666, 668 (1980). “A rule which by definition requires contributory negligence to be so clear ‘that no other reasonable inference may be drawn therefrom’ will by its nature be satisfied only infrequently and only in extreme circumstances.” Wagoner v. Butcher, 6 N.C. App. 221, 231-32, 170 S.E.2d 151, 158 (1969).

While the evidence in the present case is sufficient to permit the jury to find that plaintiff’s intestate was negligent in that she did not keep a proper lookout, did not yield the right of way to defendant, and that one or more of these negligent acts was a proximate cause of the collision and her death, we cannot say that under all the circumstances of this case that the evidence so clearly establishes her negligence that “no other reasonable inference or conclusion may be drawn therefrom.” The evidence in the present case tends to show that plaintiff’s intestate and her daughter stopped and looked in both directions before they began to cross the highway and that they did not see any approaching vehicles. The evidence also tends to show that plaintiff’s intestate, with her daughter, crossed 30 feet of the travel portion of the highway before she was struck by defendant’s vehicle.

From this evidence the jury could infer that the negligence of defendant, hereinbefore described, was the proximate cause of the collision, and not the negligence of plaintiff’s intestate in failing to see defendant’s vehicle. Ordinarily, proximate cause is a question for the jury.

We hold the trial judge erred in directing a verdict for defendant, and the cause will be remanded to the Superior Court for a new trial.

*698We need not discuss at this time the question of whether the court erred in not submitting the issue of last clear chance, since that issue can only be decided from the evidence at the new trial.

New trial.

Judge EAGLES dissents. Judge Greene concurs.

Dissenting Opinion

Judge Eagles

dissenting.

I agree that there is sufficient evidence to submit the issue of the defendant’s negligence to the jury. However, I disagree with that portion of the majority’s opinion which holds that the plaintiff was not contributorily negligent as a matter of law.

The majority attempts to distinguish the instant case from Meadows v. Lawrence, 75 N.C. App. 86, 330 S.E.2d 47, affirmed, 315 N.C. 383, 337 S.E.2d 851 (1985), because of factual dissimilarities. In doing so, the majority overlooks the sound legal principles applied in Meadows, which are equally applicable here. In Meadows, this court stated:

It was plaintiff’s duty to look for approaching traffic before she attempted to cross the highway. Having started, it was her duty to keep a lookout for it as she crossed.
Blake v. Mallard, 262 N.C. at 65, 136 S.E.2d at 216-7. Accord Garmon v. Thomas, 241 N.C. 412, 85 S.E.2d 589 (1955) (plaintiff was negligent in failing to keep a “timely lookout”).
The courts of this State have, on numerous occasions, applied the foregoing standard of due care when the plaintiff was struck by a vehicle while crossing a road at night outside a crosswalk. If the road is straight, visibility unobstructed, the weather clear, and the headlights of the vehicle in use, a plaintiff’s failure to see and avoid defendant’s vehicle will consistently be deemed contributory negligence as a matter of law. See Price v. Miller, 271 N.C. 690, 157 S.E.2d 347 (1976); Blake v. Mallard; Hughes v. Gragg, 62 N.C. App. 116, 302 *699S.E.2d 304 (1983); Thorton v. Cartwright, 30 N.C. App. 674, 228 S.E.2d 50 (1976).

Meadows, 75 N.C. App. at 89-90, 330 S.E.2d at 50.

These same guiding legal principles were applied in Price v. Miller, 271 N.C. 690, 157 S.E.2d 347 (1967), and are controlling here. In Price, the plaintiffs intestate was killed while crossing U.S. Highway 258 in Onslow County. There was no evidence that plaintiff’s intestate was intoxicated or unsteady on his feet. Id. at 691, 157 S.E.2d at 349. After reviewing the relevant case law, the Supreme Court concluded that the plaintiff’s intestate was con-tributorily negligent as a matter of law. The Court stated:

In the instant case, the evidence reveals that defendant’s lights were burning and that plaintiff’s intestate could have seen them at any time while the defendant’s automobile was traveling toward him for a distance of at least one-half mile. The road was straight and level. The weather was clear. We have concluded that plaintiff’s evidence provided sufficient inferences of negligence to carry this case to the jury against the defendant on the theory that she failed to keep a proper lookout. If defendant were negligent in not seeing plaintiff’s intestate, ..., in whatever length of time he might have been in the vision of her headlights, then plaintiff’s intestate must certainly have been negligent in not seeing defendant’s vehicle as it approached, with lights burning, along the straight and unobstructed highway.

Price, 271 N.C. at 696, 157 S.E.2d at 351.

Here, the evidence, when taken in the light most favorable to the plaintiff, shows the following: that the plaintiff’s intestate was crossing a long straight segment of U.S. Highway 74 at night; that there was nothing obstructing the visibility of the defendant or the plaintiff’s intestate; that the defendant was burning his headlights; and that while the plaintiff’s intestate did look both ways before she started to cross the highway, she did not continue to maintain a lookout as she crossed the highway. As in Price:

We must conclude that plaintiff’s intestate saw defendant’s automobile approaching and decided to take a chance of getting across the road ahead of it, or in the alternative, that [s]he not only failed to yield the right of way to defendant’s auto*700mobile, but by complete inattention [failed to maintain a lookout as she crossed the highway].
In any event, the only conclusion that can be reasonably drawn from plaintiff’s evidence is that plaintiff’s intestate’s negligence was at least a proximate cause of [her] death.

Price, 271 N.C. at 696, 157 S.E.2d at 351.

For the reasons stated, I respectfully dissent.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.