State v. Call

JohnsoN, J.

The evidence offered at the trial, while sharply conflicting, was sufficient to carry the case to the jury on the reckless driving-count, and the defendant’s motion for judgment as of nonsuit was properly denied. See S. v. Steelman, 228 N.C. 634, 46 S.E. 2d 845; S. v. Holbrook, 228 N.C. 620, 46 S.E. 2d 843; S. v. Wilson, 218 N.C. 769, 12 S.E. 2d 654.

However, the following portions of the charge form the basis of excep-tive assignments of error which seem to be meritorious: “Now, the State insists and contends, gentlemen of tbe jury, tbat this woman bad a right to cross the street, and the Court charges you she did have a right to cross the street, and if she wanted to cross it in the middle of the block, she had a right to cross it in the middle of the block, she could have gone up to the intersection and crossed there, if she wanted to cross there, she had a right to cross there, but she also had a right to cross at any other place on the street, if she saw fit to do so, and the simple fact that she wasn’t at an intersection didn’t give anybody the right to run over her, they still were charged with the duty, anybody upon the highway, was still charged with the duty of doing that which was necessary for her protection, when she was crossing the street.”

These instructions run counter to the express provisions of G.S. 20-174, which provide in pertinent part as follows : “(a) 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. ... (c) Between adjacent intersections at which trafile control signals are in operation pedestrians shall not cross at any place except in a marked cross-walk. ... (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, .' V

Here the evidence discloses no marked cross-walk, and all the evidence tends to show that the injured pedestrian was crossing a street in' the middle of a block, between intersections at which traffic control signals were in operation, in violation of the.express provisions of G.S. 20fÍ74. True, the defendant was nonetheless required to exercise due care .to avoid colliding with the pedestrian, but even so, it must be kept in mind that the defendant was not charged with a violation-of this statute. He was on trial for alleged violation of G.S. 20-140, known as the reckless driving statute:

“Eeckless driving. — Any person who drives any vehicle upon a highway carelessly and heedlessly in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection and.,at .a speed or in a manner so as to endanger or be likely to endanger any person or property, shall be guilty of reckless driving, and upon conviction shall be punished as provided in Sec. 20-180.”

And as bearing on the ultimate issue of whether the defendant was guilty of violating the reckless driving statute, it may be conceded that under the evidence adduced below it was pertinent and proper for the jury to consider the correlative duties imposed by G.S. 20-174 upon both the pedestrian and the defendant. See Tysinger v. Dairy Products, 225 N.C. 717, 36 S.E. 2d 246.

Tbis being so, tbe defendant was entitled to have tbe presiding judge explain and correctly apply to tbe different phases of tbe evidence tbe provisions of G.S. 20-174. Tbis tbe court failed to do. Tbe instructions given were calculated to lead tbe jury to believe tbat tbe pedestrian bad tbe right to cross tbe street wherever she wished, at any place within tbe block, and tbat tbe defendant was under tbe absolute duty to avoid hitting her. Tbe challenged instructions must be held for prejudicial error.

Since tbe questions raised by tbe defendant’s other exceptive assignments of error may not arise on retrial, we refrain from discussing them.

New trial.