Clarence O. GARMON
v.
Wade THOMAS.
No. 601.
Supreme Court of North Carolina.
February 4, 1955.*591 Welling & Welling, Elbert E. Foster, Charlotte, for plaintiff.
Kennedy, Kennedy & Hickman, Charlotte, for defendant.
DENNY, Justice.
The defendant challenges the correctness of the refusal of the court below to sustain his motion for judgment as of nonsuit on the ground that the plaintiff was contributorily negligent as a matter of law.
In relying on this assignment of error, the defendant necessarily concedes his own negligence. Therefore, the question presented is whether the evidence adduced in the trial below, when considered in the light most favorable to the plaintiff, clearly establishes his negligence as a contributing or proximate cause of his injury. If the plaintiff's negligence did contribute to his injury it need not have been the sole proximate cause thereof in order to bar recovery, but it is sufficient if it was a proximate cause or one of them. Badders v. Lassiter, 240 N.C. 413, 82 S.E.2d 357; Lyerly v. Griffin, 237 N.C. 686, 75 S.E.2d 730; Stevens v. Southern R. R. Co., 237 N.C. 412, 75 S.E.2d 232; Dawson v. Seashore Transportation Co., 230 N.C. 36, 51 S.E.2d 921; Godwin v. Atlantic Coast Line R. R., 220 N.C. 281, 17 S.E.2d 137; Hampton v. Hawkins, 219 N.C. 205, 13 S.E.2d 227.
The burden of showing contributory negligence is on the defendant and a motion for judgment as of nonsuit will not be allowed if the controlling and pertinent facts are in dispute, nor where opposing inferences are permissible from plaintiff's proof. Battle v. Cleave, 179 N.C. 112, 101 S.E. 555; Ferguson v. Ashville, 213 N.C. 569, 197 S.E. 146; Templeton v. Kelley, 215 N.C. 577, 2 S.E.2d 696. But the plaintiff may relieve the defendant of the burden of showing contributory negligence when it appears from his own evidence that he was contributorily negligent. Godwin v. Atlantic Coast Line R.R., supra.
There is some evidence with respect to skid marks that would tend to show that the defendant became aware of plaintiff's presence on the road while he was a greater distance from him than that shown by his oral testimony. However, the doctrine of last clear chance is not pleaded. Neither is there any evidence which would have put the defendant on notice, if it had been that the plaintiff was incapacitated or incapable of exercising ordinary care for his own safety. Aydlett v. Keim, 232 N.C. 367, 61 S.E.2d 109. The plaintiff's testimony shows that he was advertent to the fact that the road was in use as a highway.
G.S. § 20-174, subsection (a) provides that: "Every pedestrian crossing a roadway at any point other than within a marked cross-walk or within an unmarked cross-walk at an intersection shall yield the right-of-way to all vehicles upon the roadway." While in subsection (e) of this statute it is provided as follows: "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."
The defendant, pursuant to the provisions of the above statute, had the right of way on the occasion under consideration subject to the provisions of subsection (e) thereof.
*592 The facts disclosed by this record are unusual in certain respects. The defendant traveled from 700 to 1,000 feet along a main traveled highway at approximately 25 miles per hour, partly blinded by the sun, and never saw the plaintiff until he was too close to him to stop before hitting him. On the other hand, the plaintiff, according to his testimony, never saw the approaching truck until it was within 5 feet of him although he testified that he looked all the way down the road toward Wadesboro just before he started across the highway and that the defendant's truck was not in sight. He further testified that he glanced to his right when he was halfway across the highway and saw nothing. But all the evidence supports the view that the plaintiff could have seen the defendant's truck at any time while it was traveling toward him for the distance of 700 to 1,000 feet if he had looked. Furthermore, there is no evidence that the defendant was driving his truck at an excessive or illegal rate of speed. Conceding, however, that the defendant should have seen the plaintiff and given him warning of his approach, the plaintiff was at all times under the duty to see the defendant and to yield the right of way to him. In our opinion, both parties were negligent. The defendant was negligent in failing to exercise due care to avoid colliding with the plaintiff on the highway, Lewis v. Watson, 229 N.C. 20, 47 S.E.2d 484, and the plaintiff was negligent in failing to exercise reasonable care for his own safety in that he failed to keep a timely lookout to see what he should have seen and could have seen if he had looked. Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246; Jenkins v. Johnson, 186 Va. 191, 42 S.E.2d 319. The facts compel the view that the defendant's truck was near the plaintiff and plainly visible to him if he had looked at the time he walked into its path. "There are none so blind as those who have eyes and will not see." Baker v. Atlantic Coast Line R. Co., 205 N.C. 329, 171 S.E. 342, 343.
The facts in the case of Williams v. Henderson, 230 N.C. 707, 55 S.E.2d 462, 463, which is relied upon by the plaintiff, are distinguishable from those here, as well as the facts in Tysinger v. Coble Dairy Products, supra, and similar cases. In the Williams case, the deceased lived on the north side of the highway. She left her home to go to her mail box on the southern edge of the highway. As she crossed the highway, two heavily loaded oil trucks were approaching from the west traveling 45 or 50 miles an hour. The first truck passed the deceased. As the second truck approached, deceased was standing at the mail box on the shoulder of the road, apparently oblivious of the approach of the second truck. When the truck was within 15 or 20 feet of the deceased, she turned suddenly and "`started back across the highway in a fast walk.'" She was hit by the truck and thrown 112 feet while the truck traveled 250 feet before it stopped. This Court, speaking through Barnhill, J., now Chief Justice, said: "Here the defendant was operating his heavily loaded truck at 45 to 50 miles per hour within 150 feet of the vehicle just ahead. As the road was straight he saw or should have seen the deceased on the shoulder of the highway standing at the mail box even before the first truck passed her. She had her back to him and was apparently oblivious of his approach. Yet he did not slacken his speed or apply his brakes or sound his horn. These circumstances present a case for the jury."
In the case of Tysinger v. Coble Dairy Products, supra, the plaintiff's deceased was walking in the direction from which the defendant's truck was approaching, and suddenly started to cross the highway and was hit by the side of the truck. The truck had been visible for at least 300 yards. Winborne, J., speaking for the Court, said [225 N.C. 717, 36 S.E.2d 251]: "* * * it was the duty of plaintiff's testator, in crossing the highway at a point other than within a marked cross walk or within an unmarked cross walk at an intersection, to yield the right of way to defendant's truck approaching upon the roadway, and the operator of the truck, in the absence of anything which gave or should have given notice to the contrary, was entitled to assume and to act upon the assumption that plaintiff's *593 testator would use reasonable care and caution commensurate with visible conditions, and that he would observe and obey the rules of the road. * * * And there is no evidence of anything that gave or should have given notice to the operator of defendant's truck that plaintiff's testator was unaware of the approach of the truck, and would not obey the rule of the road, until the time the testator started across the highway, nor is there evidence as to how close the truck was to him when he started acrossexcept the fact that he was stricken by the side of the truck near the center of the highway. Under such circumstances, to infer that the operator of the truck failed to exercise due care to avoid colliding with the testator upon the roadway, or to infer that a failure to give warning by sounding the horn was a proximate cause of the collision between the truck and testator, * * * would be mere speculation."
In Jenkins v. Johnson, supra, the decedent was observed standing on the south side of the highway. As soon as two motor vehicles traveling east passed him, he started across the highway. Defendant, traveling west at between 25 and 30 miles an hour, first saw decedent when he (decedent) was about the center of the highway and defendant was 25 or 30 steps to the east. Defendant immediately blew his horn. When he saw that decedent did not intend to stop and permit him to pass, he swerved his car to the right. At the same time decedent increased his speed and walked or half ran into the side of defendant's car when the right wheels were at least 3 feet off the hard surface of the road shoulder. The Supreme Court of Virginia said [186 Va. 191, 42 S.E.2d 320]: "The highway was level and straight for approximately one-quarter of a mile east and west of the point of impact. After the motor vehicles traveling east had passed, there was nothing to prevent either defendant or decedent from seeing the other. If defendant was negligent in failing to see decedent, decedent was equally negligent in failing to see defendant's car. If it be conceded that the defendant was negligent in failing to see decedent in time to have avoided the accident, then it must be conceded that if decedent had stopped walking at any point within four feet of the northern edge of the hard surface, he would have saved himself from the collision." The Court held that the decedent's negligence was a contributing cause of his injuries.
The defendant's motion for judgment as of nonsuit should have been allowed.
Reversed.
BOBBITT, Justice (dissenting).
There is evidence both of actionable negligence and of contributory negligence. The decisive question: Does the evidence establish conclusively, as a matter of law, that negligence of the plaintiff contributed to his injury as a concurring proximate cause thereof? The Court answers in the affirmative, reversing the court below on the ground that judgment of involuntary nonsuit should have been entered. My analysis of the evidence impels me to a different view.
The court will declare a plaintiff contributorily negligent as a matter of law only when, upon facts admitted or established by uncontradicted evidence, contributory negligence of the plaintiff is the only reasonable inference that may be drawn therefrom. Too, testimony of defendant's witness, favorable to plaintiff, must be considered in plaintiff's favor upon consideration of defendant's motion for judgment of involuntary nonsuit at the close of all the evidence. These wellestablished propositions are relevant here.
In Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246, 251, plaintiff's testator was held contributorily negligent as a matter of law. In that case, as here, the highway was 22 feet wide; its course was east-west; and plaintiff's testator was struck by defendant's truck while attempting to cross from the south to the north side of the highway. The distinguishing facts are these: Defendant's truck, traveling east, was on its right side of the highway, adjacent to the shoulder on the south *594 side, and plaintiff's testator, before going upon the highway, was walking west along the south shoulder, thus facing in the direction of the oncoming truck; and plaintiff's testator walked north from his place of safety on the south shoulder, directly in the path of the approaching truck, making contact with the right side thereof as it veered to the left just before the impact. After an analysis of the evidence, Winborne, J., says: "And there is no evidence of anything that gave or should have given notice to the operator of defendant's truck that plaintiff's testator was unaware of the approach of the truck, and would not obey the rule of the road, until the time the testator started across the highway, nor is there evidence as to how close the truck was to him when he started across except the fact that he was stricken by the side of the truck near the center of the highway."
As to the Virginia case of Jenkins v. Johnson, 186 Va. 191, 42 S.E.2d 319, suffice it to say that the factual situation there impresses me as analogous to that in the Tysinger case rather than to that in the case now before the Court.
In Williams v. Henderson, 230 N.C. 707, 55 S.E.2d 462, 463, judgment of involuntary nonsuit was reversed. Here again we have an east-west highway on which plaintiff's intestate was struck by defendant's truck while attempting to cross from the south side to the north side of the highway. Defendant's truck, traveling east, was on its right side of the highway, adjacent to the shoulder on the south side, and plaintiff's intestate was standing at her mail box on the south shoulder, with her back towards the approaching truck, apparently oblivious of its approach. "When this truck was within 15 or 20 feet of deceased, she turned suddenly and `started back across the highway in a fast walk.'" The Tysinger case was distinguished on the ground that the driver in the Williams case was negligent in failing to give timely warning to a pedestrian apparently unaware of the approach of the truck. As to contributory negligence, Barnhill, J. (now C. J.), says: "Of course it was the duty of the deceased to look before she started back across the highway. Even so, under the circumstances here disclosed, her failure so to do may not be said to constitute contributory negligence as a matter of law. It is for the jury to say whether her neglect in this respect was one of the proximate causes of her injury and death."
In my opinion, the facts here are more favorable to the plaintiff than in the Williams case. These features should be noted:
1. Smith, defendant's witness, who was standing behind the cab on defendant's truck, facing in the direction of travel, west, saw the plaintiff, while walking slowly across the highway, proceeding from the south side towards the north side thereof, apparently oblivious of the approach of defendant's truck. "Mr. Garmon was coming on, not looking at him." No warning was given to plaintiff.
2. Defendant's truck, traveling west, was on its right side of the highway; and plaintiff was walking slowly, visible to the driver of the truck during the entire course of such walk until he reached the point of impact, only a foot and one-half from the northern edge of the hard surface. There is no evidence of any sudden, unforeseeable act of plaintiff, such as darting out in front of the oncoming truck, nor is there any evidence of hesitation, stopping or change of direction or pace while walking across the highway.
In addition to these distinguishing features, I am persuaded that, under the facts in the case now under consideration, it was permissible for the jury to find that plaintiff had the right of way.
It is not unlawful for a pedestrian to cross a public highway. If, while so engaged, he is injured or killed from contact with a motor vehicle on such public highway, the statutory rule as to right of way is relevant. G.S. § 20-174. In relation to the cited statute, it has been held consistently that a pedestrian's failure to yield the right of way is not contributory negligence per se, but only evidence thereof *595 for consideration with all other facts and circumstances. Citizens National Bank v. Phillips, 236 N.C. 470, 73 S.E.2d 323; Simpson v. Curry, 237 N.C. 260, 74 S.E.2d 649; Goodson v. Williams, 237 N.C. 291, 74 S.E.2d 762.
G.S. § 20-155(a) provides: "When two vehicles approach or enter an intersection and/or junction at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right except as otherwise provided in § 20-156." (Italics added.) Even so, the driver of the vehicle on the left has the right of way if, when he reaches and enters the intersection, the vehicle approaching on his right is far enough away so that, in the exercise of reasonable care and prudence, he is justified in the belief that he can pass over the intersection in safety. In such case, upon his entering the intersection, it becomes the duty of the driver of the vehicle approaching on the right to decrease his speed, bring his car under control, and, if necessary, stop it in order to yield the right of way and thereby avoid a collision. Yellow Cab Co. v. Sanders, 223 N.C. 626, 27 S.E.2d 631; State v. Hill, 233 N.C. 61, 62 S.E.2d 532, and cases cited.
The rights as between motorist and motorist are relative. Williams v. Henderson, supra. This is equally true as between motorist and pedestrian. "The rights of pedestrians and vehicular traffic in the use of streets and highways are generally `mutual, equal, and co-ordinate.' A pedestrian should use ordinary care for his own safety when crossing a street or highway; however, he has the right to assume that others will use a like care to avoid injuring him." 5 Am.Jur., Automobiles, sec. 448. "A person in a public highway may rely upon the exercise of reasonable care on the part of drivers of vehicles to avoid injury. A failure to anticipate the omission of such care does not render him negligent." Deputy v. Kimmell, 73 W.Va. 595, 80 S.E. 919, 923, 51 L.R.A.,N.S., 989, Ann.Cas.1916E, 656.
If, when plaintiff started his slow walk across the highway, the defendant's truck was not in sight, as plaintiff's evidence tends to show, or was far enough away that plaintiff, in the exercise of due care, was justified in believing that he could cross safely ahead of the approaching truck of defendant, as the testimony of Smith, defendant's witness, tends to show, in either case defendant should have yielded the right of way to plaintiff. The fact that he lacked only a foot and a half of completing the crossing when struck by the right front fender and headlight of defendant's truck is a circumstance tending to show that he was justified in believing he could cross safely.
Smith, defendant's witness, testified, in substance: That he saw plaintiff, carrying the flambeaux, when plaintiff started across the highway, and as plaintiff continued across the highway; that "(he) wished (he) was sitting in the front by Mr. Thomas so (he) could tell him that (plaintiff) was crossing"; that "(he) wanted to go get there in the front seat to warn him, maybe he didn't see the man"; that "(he) had seen him away from it a good distance"; and his testimony as to the actual distance from the truck to plaintiff when he first saw plaintiff, neither clear nor consistent, varied from testimony that plaintiff was some 300 feet away when the witness first observed him on the highway to testimony permitting inferences that plaintiff was much farther away from defendant's truck when plaintiff started his walk across the highway. The evidence permits the inference that had defendant seen what Smith saw, according to Smith's testimony, defendant could and would have stopped or slowed down or turned out to the left and in doing so avoided striking plaintiff; and the evidence permits the further inference that the explanation for defendant's failure to do so is that defendant, blinded by the sun, drove on when unable to see what was taking place on the highway ahead of him. Surely, failure of plaintiff to anticipate that defendant would drive on under such circumstances should not be charged to plaintiff as contributory negligence as a matter of law.
*596 A motorist who saw plaintiff would have seen that, crossing towards the barricades with a flambeau in each hand, he was engaged in performing duties incident to the construction work then in progress. While plaintiff's status is distinguishable from that of a man actually engaged in work on the traveled portion of a highway, Murray v. Atlantic Coast Line R. Co., 218 N.C. 392, 11 S.E.2d 326; Annotation 30 A.L.R.2d at page 876 et seq., these facts seem pertinent as additional circumstances bearing upon the issues of negligence and contributory negligence. It is noteworthy that plaintiff's work in locating the lighted flambeaux had to be performed at the barricades near the north edge of the hard surfaced highway then in use. Compare: Fleming v. Holleman, 190 N.C. 449, 130 S.E. 171; Daughtry v. Cline, 224 N.C. 381, 30 S.E.2d 322, 154 A.L.R. 789.
Assuming that plaintiff was justified in starting across the highway, having looked and having observed no vehicle dangerously near, he was not required as a matter of law to look continuously for the approach of motor vehicles while crossing: "If, as he leaves the curb, he looks for the approach of machines, he is not necessarily guilty of negligence in failing to keep a continuous lookout or to look a second time, but whether he has exercised a reasonable degree of prudence is a question for the jury." Again: "Even if he sees an automobile approaching, he is not under the duty of continually watching its approach, provided its proximity and apparent speed are such as to justify an ordinarily prudent man in believing that he would have sufficient time to cross ahead of it with safety." Huddy, Vol. 5-6, Encyclopedia of Automobile Law, 9th Ed., sec. 86; also, see 5 Am.Jur., Automobiles, sec. 451; Deputy v. Kimmell, supra; Ritter v. Hicks, 102 W.Va. 541, 135 S.E. 601, 50 A.L.R. 1505.
If, while crossing the highway, plaintiff should have been more vigilant in his lookout for a vehicle approaching from his right, it is well to remember that at most he is chargeable with what he would have seen had he so looked, to wit, a truck approaching at 20 to 25 miles per hour with no other vehicular traffic involved.
My conclusion is as follows: This case is distinguishable from the Tysinger case where plaintiff's testator was held contributorily negligent as a matter of law; it is more favorable to plaintiff than the Williams case, where the issue of contributory negligence was held to be for the jury; and it rather closely resembles the Goodson case, where the issue of contributory negligence was held to be for the jury.
For the reasons stated, I think the issue of contributory negligence was for the jury. Since the Court's decision is that judgment of involuntary nonsuit should have been entered, there is no occasion to comment on assignments of error not relating to this determinative question.