Culler v. Hamlett

Decision Date05 February 2002
Docket NumberNo. COA00-1110.,COA00-1110.
Citation148 NC App. 372,559 S.E.2d 195
CourtNorth Carolina Court of Appeals
PartiesBarbara Ann CULLER, Plaintiff, v. Stacey Poteat HAMLETT, Houston Gwynn Hamlett, Jr., and Anthony Dale Green, Defendants.

George B. Daniel, P.A. by John M. Thomas, Yanceyville, for plaintiff-appellant.

Burton & Sue, L.L.P. by Walter K. Burton, Greensboro, for defendants-appellee Hamlett.

Teague, Rotenstrich and Stanaland, L.L.P. by Stephen G. Teague, Greensboro, for defendant-appellee Green.

BIGGS, Judge.

Plaintiff appeals the trial court's order granting directed verdict in favor of defendants, Stacy and Houston Hamlett, in an action for personal injuries. In addition to the Hamletts, plaintiff sued a third defendant, Anthony Dale Green. The trial against defendant, Green, was severed from the trial against the Hamletts and reported in a separate opinion. For the reasons herein, we affirm the trial court's grant of directed verdict in favor of the Hamletts.

The evidence at trial tended to show the following: On 30 June 1993, at approximately 3:00 a.m., plaintiff left work in Greensboro, North Carolina and started driving home to Providence, North Carolina. Plaintiff described the traveling conditions as slightly foggy and dark. She was driving a 1984 Ford Escort that she planned to purchase from a relative of co-defendant, Anthony Green. Plaintiff explained that she had not had any past mechanical problems with the vehicle; however, while driving easterly on the highway, plaintiff began to experience problems when the vehicle's stick shift kept "popping out of gear". After crossing Highway 86 onto Park Springs Road, the vehicle became disabled forcing her to stop on the side of the two-lane road.

Shortly thereafter, plaintiff saw a vehicle approaching from the opposite direction and recognized the vehicle as belonging to Anthony Green. Green, who was traveling westerly on the highway, slowed down, pulled his vehicle onto the shoulder of the roadway and parked it partially on the roadway in the lane opposite of plaintiff's disabled vehicle. Plaintiff emerged from her car and walked across the roadway to Green's car, while he remained seated with the driver's door open and his engine running.

While engaged in conversation with Green, plaintiff saw the headlights of defendants' vehicle from approximately "300 yards away". The defendants, like Green, were traveling in a westerly direction on the roadway; Stacey Hamlett was driving. After telling Green that a car was approaching, plaintiff then turned away and began to walk back across the roadway towards her vehicle. Defendants' vehicle collided first with Green's vehicle, then struck and injured plaintiff, before colliding with plaintiff's vehicle. Plaintiff sustained a fractured left femur which required surgery.

Plaintiff filed an action on 30 October 1998, against defendants and Green for the injuries she suffered when she was struck while crossing the roadway. More specifically, plaintiff alleges that defendant, Stacey Hamlett, was negligent in the operation of her vehicle. Defendants filed a reply denying any negligence and alleged contributory negligence of plaintiff. Plaintiff then filed a reply alleging last clear chance. The trial involving defendants was conducted before a jury.

On 8 March 2000, after plaintiff rested her case, the trial court entered an order granting a directed verdict in favor of defendants, finding that the plaintiff was contributorily negligent as a matter of law and further finding the doctrine of last clear chance inapplicable. From the entry of the directed verdict and dismissal of her action, plaintiff gave notice of appeal to this Court.

The sole issue for appellate review is whether the trial court erred in directing a verdict in favor of defendants.

Our standard of review on the grant of a motion for directed verdict is "whether, upon examination of all the evidence in the light most favorable to the nonmoving party [with this] party be[ing] given the benefit of every reasonable inference drawn therefrom, the evidence is sufficient to be submitted to the jury." Fulk v. Piedmont Music Center, 138 N.C.App. 425, 429, 531 S.E.2d 476, 479 (2000) (citing Abels v. Renfro Corp., 335 N.C. 209, 214-15, 436 S.E.2d 822, 825 (1993)). A directed verdict should be granted in favor of the moving party only where "`the evidence so clearly establishes that fact in issue that no reasonable inferences to the contrary can be drawn,' and `if the credibility of the movant's evidence is manifest as a matter of law.'" Law Offices of Mark C. Kirby, P.A. v. Industrial Contractors, Inc. and Buddy Harrington, 130 N.C.App. 119, 123, 501 S.E.2d 710, 713 (1998) (quoting Lassiter v. English, 126 N.C.App. 489, 493, 485 S.E.2d 840, 842-43, disc. review denied, 347 N.C. 137, 492 S.E.2d 22 (1997)) (citation omitted).

I.

Plaintiff first assigns error to the trial court's grant of defendants' motion for directed verdict contending that defendant did not establish plaintiff's contributory negligence as a matter of law. We disagree.

In Wolfe v. Burke, 101 N.C.App. 181, 185, 398 S.E.2d 913, 915 (1990), this Court outlined the common law and statutory duty of a pedestrian in crossing a road:

In North Carolina, a pedestrian has `a common law duty to exercise reasonable care for his own safety by keeping a proper lookout for approaching traffic before entering the road and while on the roadway'. Further, N.C. Gen.Stat. § 20-174(a) (1989) provides that a pedestrian `crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.' (internal citations omitted).

Wolfe, 101 N.C.App. at 185, 398 S.E.2d at 915.

This Court noted in Wolfe that a plaintiff's failure to yield a right-of-way in violation of N.C.G.S. § 20-174(a) is not contributory negligence per se, but that such failure is "`evidence of negligence to be considered with other evidence in the case in determining whether the plaintiff is chargeable with negligence which proximately caused or contributed to his injury.'" Wolfe at 186, 398 S.E.2d at 916 (quoting Dendy v. Watkins, 288 N.C. 447, 456, 219 S.E.2d 214, 220 (1975)). "Even though failing to yield the right-of-way to an automobile is not contributory negligence per se, it may be contributory negligence as a matter of law." Id. at 186, 398 S.E.2d at 916 (citing Meadows v. Lawrence, 75 N.C.App. 86, 330 S.E.2d 47 (1985), aff'd, 315 N.C. 383, 337 S.E.2d 851 (1986)). The trial court must direct a verdict for the defendants "when all the evidence so clearly establishes [plaintiff's] failure to yield the right of way as one of the proximate causes of his injuries that no other reasonable conclusion is possible." Ragland v. Moore, 299 N.C. 360, 364, 261 S.E.2d 666, 668 (1980) (quoting Blake v. Mallard, 262 N.C. 62, 65, 136 S.E.2d 214, 216 (1964)); see also, e.g. Brooks v. Francis, 57 N.C.App. 556, 291 S.E.2d 889 (1982)

(judgment as a matter of law proper where uncontroverted evidence shows that plaintiff's failure to use due care was at least one proximate cause of plaintiff's injuries).

In Meadows v. Lawrence, this Court held that the plaintiff was contributorily negligent as a matter of law where the evidence showed that the plaintiff's negligence in crossing a highway was at least one proximate cause of the accident. 75 N.C.App. at 90, 330 S.E.2d at 50. In that case, the evidence in the light most favorable to the plaintiff revealed the following: that plaintiff was standing in the defendant's highway lane of travel; that the defendant, with his vehicle headlights burning, turned onto the highway at a distance at least 100 feet from the plaintiff; and that the road was straight and visibility unobstructed. Id.

This Court in Meadows found significant that "between the time [defendants'] car turned onto the highway and the time of the collision, [plaintiff] took one or two steps towards the center of the road." Id. Noting that it was the "plaintiff's duty to look for approaching traffic before she attempted to cross the highway," this Court stated:

The courts of this State have, on numerous occasions, applied the foregoing standard of due care when the plaintiff was struck by a vehicle while crossing a road at night outside a crosswalk. If the road is straight, visibility unobstructed, the weather clear, and the headlights of the vehicle in use, a plaintiff's failure to see and avoid defendant's vehicle will consistently be deemed contributory negligence as a matter of law.

Id. at 89-90, 330 S.E.2d at 50.

In Price v. Miller, 271 N.C. 690, 696, 157 S.E.2d 347, 351-352 (1967), our Supreme Court held that the plaintiff's intestate was contributorily negligent as a matter of law where the evidence showed that the decedent was crossing the road at night and without the benefit of a crosswalk. The defendant's vehicle was approaching the decedent at a rate of 60 miles per hour in a 55 mile per hour zone, on a straight stretch of road, and with the vehicle headlights shining. Price, 271 N.C. at 696, 157 S.E.2d at 350. In holding that any liability for defendant's negligence was precluded by the plaintiff's own negligence, our Supreme Court stated in Price:

If defendant were negligent in not seeing plaintiff's intestate, who was dressed in dark clothes, in whatever length of time he might have been in the vision of her headlights, then plaintiff's intestate must certainly have been negligent in not seeing defendant's vehicle as it approached, with lights burning, along the straight and unobstructed highway. We must conclude that plaintiff's intestate saw defendant's automobile approaching and decided to take a chance of getting across the road ahead of it, or in the alternative, that he not only failed to yield the right of way to defendant's automobile, but by complete inattention started across the highway without looking. In
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