Charlie H. FOSTER, Administrator For the Estate of Daisy Bell Foster
v.
Kaye Rowe SHEARIN and Rowe Chevrolet-Buick, Inc.
No. 759SC410.
Court of Appeals of North Carolina.
December 17, 1975.*181 Pearson, Malone, Johnson, DeJarmon & Spaulding by C. C. Malone, Jr., Durham, for plaintiff-appellant.
*182 Newsom, Graham, Strayhorn, Hedrick, Murray & Bryson by E. C. Bryson, Jr., Durham, for defendants-appellees.
PARKER, Judge.
Plaintiff's sole assignment of error is directed to the granting of defendants' motion for a directed verdict. Viewing the evidence in the light most favorable to the plaintiff, we find it insufficient to take the case to the jury on the issue of defendant's actionable negligence and therefore affirm the judgment.
Negligence is not presumed from the mere fact that plaintiff's intestate was killed in the accident. Robbins v. Crawford, 246 N.C. 622, 99 S.E.2d 852 (1957). To carry his case to the jury against the defendants on the ground of actionable negligence, the plaintiff "must offer evidence sufficient to take the case out of the realm of conjecture and into the field of legitimate inference from established facts." Williamson v. Randall, 248 N.C. 20, 25, 102 S.E.2d 381, 386 (1958). In his amended complaint plaintiff alleged that defendant driver was negligent in that she operated her vehicle at an excessive speed and failed to keep a proper lookout. Plaintiff's evidence, however, was insufficient to show the driver was negligent in these or in any other respect. There was no direct evidence concerning the speed at which defendants' vehicle was being operated, and the only physical evidence, that concerning the 48 feet of skid marks and the dent in the hood, was clearly insufficient to support a finding of excessive speed. The only evidence bearing on the question whether defendant driver maintained a proper lookout was the evidence as to the physical circumstances at the scene of the accident and as to defendant driver's statements to the officer. The physical evidence showed that the highway was straight and level and that there was no visual obstruction for some 1000 feet looking toward the scene of the accident from the direction in which defendants' vehicle was approaching. However, the stipulations and the evidence also establish that it was dark at the time, there were no street lights or other artificial lights in the area, and the accident occurred at a point where pedestrians would not normally be expected to be. More importantly, the stipulations and evidence also establish that plaintiff's intestate was attempting to walk across the highway from east to west directly into the path of defendants' on-coming car, and there was no evidence to show how long the deceased was so positioned as to be within the range of the vehicle's headlights. It is left completely to conjecture whether the deceased had been, either momentarily or for any appreciable period of time, at some point on the highway where her presence would be revealed by the headlights of the approaching car. Thus the physical circumstances leave it a matter of speculation as to whether the most careful driver, maintaining a proper lookout, could have seen the deceased in time to avoid the collision. Nor do we think that defendant driver's statement to the officer that she saw "the lady on the side of the road waving her hands" (evidently referring to the daughter of the deceased, since there was no evidence that any other person was in the area) "at which time she glanced back to the highway and saw for the first time the lady (referring to plaintiff's intestate) in her lane of travel," was sufficient to warrant a jury finding that the driver was failing to maintain a proper lookout. On the contrary, that a person is waving his arms on the side of the road furnishes adequate cause for a driver to remove his eyes momentarily from the road. "A driver who only looks ahead, oblivious to conditions behind and beside him which should affect his driving, is not keeping a proper lookout." Russell v. Hammond, 200 Va. 600, 605, 106 S.E.2d 626, 631 (1959).
We also find that the evidence in this case, viewed in the light most favorable to the plaintiff, so clearly establishes negligence *183 on the part of plaintiff's intestate as one of the proximate causes of her injuries as to require directed verdict for the defendants on that ground. The intestate was walking across a highway at a point other than within a marked crosswalk or within an unmarked crosswalk at an intersection. It was her duty to yield the right of way to all vehicles upon the roadway. G.S. 20-174(a). Although the failure of a pedestrian crossing a roadway at a point other than a crosswalk to yield the right of way to a motor vehicle is not contributory negligence per se but is only evidence of negligence, "the court will nonsuit a plaintiff-pedestrian on the ground of contributory negligence 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." Blake v. Mallard, 262 N.C. 62, 65, 136 S.E.2d 214, 216 (1964). Here, the stipulations and evidence establish that plaintiff's intestate walked in the dark across the highway directly into the path of the approaching vehicle at a point where it was her duty to yield the right of way and where she had an unobstructed view of the vehicle as it approached over a distance of at least 600 feet. "A pedestrian who crosses the street at a point where he does not have the right-of-way must constantly watch for oncoming traffic before he steps into the street and while he is crossing. (Citations omitted). If he sees a vehicle approaching him, he must move out of its path. (Citations omitted). A pedestrian who fails to take these precautions cannot be said to exercise reasonable care for his own safety." Brooks v. Boucher, 22 N.C.App. 676, 678, 207 S.E.2d 282, 284 (1974).
The trial court properly granted defendants' motion for directed verdict, and its judgment is
Affirmed.
BRITT and CLARK, JJ., concur.