Dendy v. Watkins, 65
Court | United States State Supreme Court of North Carolina |
Citation | 219 S.E.2d 214,288 N.C. 447 |
Decision Date | 05 November 1975 |
Docket Number | No. 65,65 |
Parties | Mansfield M. DENDY v. James P. WATKINS. |
Doran J. Berry and Kenneth A. Glusman, Fayetteville, for plaintiff appellee.
Nance, Collier, Singleton, Kirkman & Herndon by Rudolph G. Singleton, Jr., Fayetteville, for defendant appellant.
Did the Court of Appeals err in reversing summary judgment entered by the trial court in favor of the defendant? The answer depends upon whether the defendant has carried the 'burden of clearly establishing the lack of any triable issue of fact by the record properly before the court.' Singleton v. Stewart, 280 N.C. 460, 465, 186 S.E.2d 400, 403 (1972). 6 Moore's Federal Practice (2d ed. 1975) § 56.15(3) (hereinafter cited as Moore); Caldwell v. Deese, N.C., 218 S.E.2d 379 (1975).
Rule 56 of Chapter 1A--1 of the General Statutes in part provides:
'(b) For defending party.--A party against whom a claim, counterclaim, or crossclaim is asserted or a declaratory judgment is sought, may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.
(Emphasis supplied.)
Federal Rule 56 is substantially the same as Rule 56 of Chapter 1A--1 of the General Statutes and, therefore, it is proper for us to look at the federal decisions and textbooks as well as our own for guidance in applying the rule.
When the motion for summary judgment comes on to be heard, the court may consider the pleadings, depositions, admissions, affidavits, answers to interrogatories, oral testimony and documentary materials; and the court may also consider facts which are subject to judicial notice and any presumptions that would be available at trial. Moore, Supra, § 56.11(7), (8), (9), (10); Singleton v. Stewart, supra. Gordon, The New Summary Judgment Rule in North Carolina, 5 Wake Forest Intra.Law Rev. 87, 91. So the motion must be denied if there is any issue of genuine material fact. Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971).
As indicated above, the burden is upon the moving party to establish the lack of any triable issue of fact. The papers of the moving party are carefully scrutinized and 'those of the opposing party are on the whole indulgently regarded.' Moore, Supra, § 56.15(8) at 2440. Our question is whether there is a material issue of fact concerning actionable negligence on the part of the defendant.
Moore, Supra, § 56.15(3) at 2341.
The plaintiff relies on Landini v. Steelman, 243 N.C. 146, 90 S.E.2d 377 (1955) and Bass v. Roberson, 261 N.C. 125, 134 S.E.2d 157 (1964), to sustain his position that the court erred in finding there was no genuine issue of liability on the part of the defendant.
In Landini the Court reversed a judgment of nonsuit in favor of defendant based on defendant's lack of negligence and plaintiff's contributory negligence. Plaintiff had alighted from a bus in the nighttime and was attempting to cross a highway in the middle of a block. She testified that she looked both ways before attempting to cross and was about two-thirds of the way across the highway when she first saw the lights of defendant's automobile suddenly come on. In addition, there was evidence that defendant's vehicle was going seventy miles per hour in a forty-five miles per hour zone. The Court distinguished this case from two cases analogous to ours, Garmon v. Thomas, 241 N.C. 412, 85 S.E.2d 589 (1955) and Tysinger v. Dairy Products, 225 N.C. 717, 36 S.E.2d 246 (1945). Specifically in Garmon it was held that nonsuit should have been allowed for the reason that the plaintiff pedestrian was guilty of contributory negligence as a matter of law. The Court reasoned that the plaintiff had a duty to see the defendant and yield the right-of-way to him since the injury occurred in the daylight, outside a residential or business district and there was no evidence of excessive speed on the part of the defendant. In Tysinger the Court held that nonsuit on account of defendant's lack of negligence and plaintiff's contributory negligence was properly granted in favor of defendant for similar reasons where the plaintiff pedestrian had an unobstructed view in the daytime of three hundred yards in the direction of defendant's oncoming truck and then stepped off the edge of the road into the side of the truck.
The Bass case, also relied on by the plaintiff, was described by Chief Justice Denny as 'a borderline case.' Bass v. Roberson, supra, 261 N.C. at 127, 134 S.E.2d at 158. The plaintiff's evidence, which indicated that he was struck in the middle of the northbound lane by defendant's southbound vehicle, was substantially different from that in our case. Also, the court, in holding that the evidence was sufficient to require submission of negligence to the jury, generally refrained from discussing the evidence, and awarded a new trial on the basis of the charge of the court.
Landini and Bass appear to be clearly distinguishable from our case.
Our facts indicate that the plaintiff entered the southbound lanes of Raeford Road thirty feet from the intersection of Raeford Road and Emerline Avenue adjacent to the A & P parking lot when the traffic in the first two lanes was backed up the entire length of the block from the Fairfield traffic signal to Emerline Avenue. The plaintiff did not recall seeing any oncoming traffic from the north. He proceeded in a southeasterly direction (diagonally) across the first two southbound lanes by jaywalking between the cars that stood bumper to bumper. The plaintiff indicated in the adverse examination that before going into the third lane, he looked to the left and saw no oncoming cars. The third lane was only twelve feet wide and plaintiff was about one hundred and fifty feet from the intersection at this time. Except for vehicles, he had an unobstructed view to the left for one-half of a mile. The plaintiff said he was struck when he was three or four feet from the concrete median strip. If this was so, he had only moved eight to nine feet after he had looked to the left and saw nothing coming. The plaintiff further volunteered the information that if defendant's vehicle had been coming straight down the road, there was nothing to prevent him from seeing it.
Our Court, in Jenkins v. Thomas, 260 N.C. 768, 133 S.E.2d 694 (1963), affirmed the judgment of nonsuit upon evidence which disclosed that a pedestrian, instead of crossing at an intersection where he had the right-of-way, elected to cross one hundred feet south of the intersection and was then struck by the defendant motorist who was traveling with his...
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