Blake v. Mallard, 185

• Decision Date: 20 May 1964
• Docket Number: No. 185,185
• Citation: 136 S.E.2d 214,262 N.C. 62
• Parties: Ida BLAKE v. Steve Hodges MALLARD.
• Court: North Carolina Supreme Court

Page 214

136 S.E.2d 214

262 N.C. 62

Ida BLAKE v.Steve Hodges MALLARD.

No. 185

Supreme Court of North Carolina.

May 20, 1964

Earlie C. Sanderson, Wallace, for plaintiff.

Poisson, Marshall, Barnhill & Williams, Wilmington, for defendant.

SHARP, Justice:

Plaintiff, a pedestrian, was injured about 10:00 p. m. on May 28, 1962 when she was struck by the defendant's automobile as she attempted to cross U. S. HighwayNo. 117 from east to west near the northern limits of the Town of Wallace.She appeals from the judgment of nonsuit entered at the close of her evidence which tended to show these facts:

U. S. 117 runs generally north and south through Wallace.At the place where plaintiff was struck the highway is straight for a mile in both directions.It is sixty-six feet wide from curb to curb and consists of six lanes.A center line separates two lanes for traffic in each direction with an additional lane on each side for parking.The area is a thirty-five mile per hour speed zone and is without street lights.A dirt street, known as the Labor Camp Road, intersects U. S. 117 from the west.Fifty feet north of its northern margin, an unnamed dirt street enters U. S. 117 from the east.Each street forms a T intersection where it meets the highway.Fifteen feet north of the unnamed street on the east side of the highway is the Nightingale Clubhouse, also known as Cary's Place.

Plaintiff, a sixty-five year old colored woman wearing dark clothing, left the clubhouse with a nineteen year old girl named Queen Ella James.They stood near the highway in front of the clubhouse and talked for a while before plaintiff left Queen Ella and started across the highway 'walking normally' towards the Labor Camp Road.At that time Queen Ella observed the defendant's automobile approaching from the north about two hundred yards away at a speed which she estimated at sixty miles per hour.Plaintiff testified that while she was crossing she'observed the traffic on the highway on the right and left. 'She also said, 'I saw a car coming pretty fast, and I started to run.* * * When I first observed it, I reckon it was 45 feet from me. 'Plaintiff did not fix her location in the highway at that time but according to Queen Ella, she started to run when she was in the fourth lane for traffic.Both the investigating officer and Queen Ella testified that plaintiff was hit approximately thirty-five feet north of the Labor Camp Road in the fourth traffic lane (outside lane for traffic going south) at the edge of the parking lane.Queen Ella said that she'did not go flying through the air when she got hit.She didn't get knocked too far * * * (she imagined) about 4 or 5 feet. ' When the investigating officer arrived at the scene at 10:10 p. m. he found plaintiff in the street about twenty feet north of the northern margin of the Labor Camp Road.Her right leg was broken; she was wildly hysterical and unable to talk.Upon an examination of defendant's automobile, the officer found a slight dent near the headlight in its right front fender and a brush mark on the right bumper.The night was clear and defendant's car was equipped with headlights which were burning at the time of the accident.Both plaintiff and Queen Ella testified that defendant never sounded his horn, slackened his speed, nor turned his car until he struck plaintiff.

Plaintiff alleges that her injuries were proximately caused by defendant's negligence in that he operated his automobile at an illegal rate of speed, without keeping it under proper control, without keeping a proper lookout, and in that he failed to sound his horn or turn from his line of travel to avoid striking her as she attempted to cross the highway at a pedestrian crosswalk.Defendant denied any negligence on his part and, in the alternative, pled the contributory negligence of the plaintiff.He alleged that plaintiff, dressed in dark clothing, was standing in the center of the highway as he approached; that without any warning she suddenly darted into his lane of travel at a time and in a manner which made it impossible for him to avoid striking her.

The only question raised by this appeal is whether the court below erred in granting defendant's motion for nonsuit.If it be assumed that plaintiff's evidence makes out a prima facie case of actionable negligence against the defendant, the crucial question remains: Does plaintiff's evidence establish her own contributory negligence as a matter of law?

The record does not disclose the width of the unnamed dirt street which intersects U. S. 117, but since plaintiff began her trip across the highway from the Nightingale Clubhouse she must have started at least seventy-five feet north of the northern edge of the Labor Camp Road.She was struck twenty feet north of it near the western margin of the highway.Obviously plaintiff was crossing the highway diagonally in a southwesterly direction and not at a crosswalk as she alleged.She was, therefore, required to yield the right of way to all vehicles upon the roadway.G.S. § 20-174(a).Had she crossed in the vicinity of the Nightingale where the unnamed dirt street joined the highway she would have had the right of way over a motorist approaching that intersection, G. S. § 20-173(a), but this she did not do.

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; it is only evidence of negligence.Landini v. Steelman, 243 N.C. 146, 90 S.E.2d 377.However, 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.Gamble v. Sears, 252 N.C. 706, 114 S.E.id 677;Barbee v. Perry, 246 N.C. 538, 98 S.E.2d 794;Garmon v. Thomas, 241 N.C. 412, 85 S.E.2d 589;Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246.

The law imposes upon a person sui juris the duty to use ordinary care to protect himself from injury.It was plaintiff's duty to look for approaching traffic before she attempted to cross the highway.Having started, it was her...