Bosley v. Alexander

• Decision Date: 19 April 1994
• Docket Number: No. 9323SC133,9323SC133
• Citation: Bosley v. Alexander, 442 S.E.2d 82, 114 N.C.App. 470 (N.C. App. 1994)
• Court: North Carolina Court of Appeals
• Parties: Stephen BOSLEY, Sr. v. R. Lewis ALEXANDER, Jr., Representative of Mozelle Burchette Bauguess Estate.

Page 82

442 S.E.2d 82

114 N.C.App. 470

Stephen BOSLEY, Sr. v.R. Lewis ALEXANDER, Jr., Representative of Mozelle Burchette Bauguess Estate.

No. 9323SC133.

Court of Appeals of North Carolina.

April 19, 1994.

Franklin Smith, Elkin, for plaintiff-appellant.

Everett & Everett by James A. Everett, Elkin, for defendant-appellee.

WYNN, Judge.

PlaintiffStephen Bosley, Sr. appeals from a verdict entered 26 October 1993 in favor of defendantR. Lewis Alexander, representative of the estate of Mozelle Burchette Bauguess.

The plaintiff's evidence tended to show the following.Plaintiff was employed as a flagman in Elkin, North Carolina.On 7 December 1989he worked as one of four flagmen directing traffic at the four-way intersection of Oakland Drive, Claremont Drive, and North Bridge Street while Oakland Drive was being paved.Plaintiff wore an orange vest, carried an orange sign and faced west on Oakland Drive with his back to the stoplight at the intersection with North Bridge Street.

DefendantMozelle Burchette Baugess drove her 1971 Ford automobile west on Claremont Drive.Another flagman directed her to proceed into the intersection onto Oakland Drive.Defendant then struck plaintiff in the back, thrusting him into the air over her windshield, and into the paving machine.Plaintiff suffered severe injuries to his head and leg.Defendant later told the investigating police officer that she did not see plaintiff when she ran into him.

Defendant's evidence tended to show that prior to the accident, plaintiff walked away from his flag station and his supervisor had instructed him to return to his station.As plaintiff returned to his station with his back to defendant's automobile, she struck him.At the time of the accident, the only oncoming traffic was behind plaintiff, there was no traffic coming towards him.

The trial court instructed the jury on negligence and contributory negligence.The jury found defendant negligent and found plaintiff was contributorily negligent and not entitled to damages.The trial court entered judgment on the verdict.From this judgment, plaintiff appeals.

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From the outset, we recognize that there are serious questions regarding the validity of the doctrine of contributory negligence as evidenced by the fact that forty-six states have abandoned the doctrine in favor of comparative negligence.See Henry Woods, Comparative Fault § 1.11 (2nd ed. 1987 and Cum.Supp.1993); Fowler V. Harper, Fleming James, Jr., and Oscar S. Gray, 4 The Law of Torts § 22.1 (2nd ed. 1986 and Cum.Supp.1993).We further acknowledge that the United States Supreme Court has described contributory negligence as a "discredited doctrine which automatically destroys all claims of injured persons who have contributed to their injuries in any degree, however slight."Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409, 74 S.Ct. 202, 205, 98 L.Ed. 143, 150(1953).The doctrine of contributory negligence, which is a creature of common law followed in this State since Morrison v. Cornelius, 63 N.C. 346(1869), remains the law of this State until our Supreme Court overrules Morrison.SeeCorns v. Hall, 112 N.C.App. 232, 435 S.E.2d 88(1993);see alsoCannon v. Miller, 313 N.C. 324, 327 S.E.2d 888(1985).It is also clear that although there is no statutory basis for the doctrine of contributory negligence in North Carolina, the General Assembly, in the face of inaction by our Supreme Court, could choose to adopt a system of comparative negligence.SeeCorns112 N.C.App. at 237, 435 S.E.2d at 91.

Plaintiff assigns error to the trial court's submission of the issue of contributory negligence to the jury due to the absence of any evidence of contributory negligence.We conclude that there was sufficient evidence to submit the issue of contributory negligence to the jury.In his brief, however, plaintiff argues that as a road worker he is not required to maintain the same lookout as a pedestrian and cites Kellogg v. Thomas, 244 N.C. 722, 94 S.E.2d 903(1956).Although plaintiff did not properly assign error to the trial court's failure to instruct the jury in accordance with the Supreme Court's holding in Kellogg v. Thomas, we exercise our discretion to review this issue.N.C.R.App.P. 2;seeState v. Petty, 100 N.C.App. 465, 397 S.E.2d 337(1990).

Contributory negligence is "negligence on the part of the plaintiff which joins, simultaneously or successively, with the negligence of the defendant ... to produce the injury of which the plaintiff complains."Jackson v. McBride, 270 N.C. 367, 372, 154 S.E.2d 468, 471(1967).The defendant bears the burden of proving that certain acts or conduct of the plaintiff constituted contributory negligence.Atkins v. Moye, 277 N.C. 179, 176 S.E.2d 789(1970);Mims v. Dixon, 272 N.C. 256, 158 S.E.2d 91(1967).The defendant must prove by the greater weight of the evidence that the plaintiff's negligence was one of the proximate causes of his injury or damages.Clark v. Bodycombe, 289 N.C. 246, 221 S.E.2d 506(1976).The issue of contributory negligence should be submitted to the jury if all the evidence and reasonable inferences drawn therefrom viewed in the light most favorable to the defendant tend to establish or suggest contributory negligence.Wentz v. Unifi, 89 N.C.App. 33, 365 S.E.2d 198, disc. rev. denied, 322 N.C. 610, 370 S.E.2d 257(1988)." 'If there is more than a scintilla of evidence, contributory negligence is for the jury.' "Blankley v. Martin, 101 N.C.App. 175, 178, 398 S.E.2d 606, 608(1990)(quotingTatum v. Tatum, 79 N.C.App. 605, 607, 339 S.E.2d 817, 818, modified and aff'd, 318 N.C. 407, 348 S.E.2d 813(1986)).A finding of contributory negligence is a bar to recovery from a defendant for acts of ordinary negligence.Sorrells v. M.Y.B. Hospitality Ventures of Asheville, 332 N.C. 645, 423 S.E.2d 72(1992).

In Clark v. Roberts, 263 N.C. 336, 139 S.E.2d 593(1965), our Supreme Court explained the doctrine of contributory negligence:

Every person having the capacity to exercise ordinary care for his own safety against injury is required by law to do so, and if he fails to exercise such care, and such failure, concurring and cooperating with the actionable negligence of defendant contributes to the injury complained of, he is guilty of contributory negligence.Ordinary care is such care as an ordinarily...