Gamble v. Sears, 461

Decision Date10 June 1960
Docket NumberNo. 461,461
CourtNorth Carolina Supreme Court
PartiesRichard O. GAMBLE, Administrator of the Estate of Charles F. Rogers, Deceased, v. Doris SEARS and Raeford L. Sears.

Charles F. Blanchard, Raleigh, for plaintiff, appellant.

Smith, Leach, Anderson & Dorsett, Raleigh, for defendant, appellee.

BOBBITT, Justice.

Only one question is presented: Was the evidence, when considered in the light most favorable to plaintiff, sufficient to require submission to the jury? Murray v. Wyatt, 245 N.C. 123, 128, 95 S.E.2d 541.

It is not unlawful for a pedestrian to cross a public highway. If, while so engaged, he is injured or killed from contact with a motor vehicle on such public highway, the statutory rule as to right of way is relevant.

Relevant to the alleged (contributory) negligence of Rogers, G.S. § 20-174(a) provides: '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.' However, a pedestrian's failure to yield the right of way is not (contributory) negligence per se, but only evidence thereof for consideration with other facts and circumstances. Citizens National Bank v. Phillips, 236 N.C. 470, 73 S.E.2d 323, and cases cited; Simpson v. Curry, 237 N.C. 260, 74 S.E.2d 649; Goodson v. Williams, 237 N.C. 291, 74 S.E.2d 762; Moore v. Bezalla, 241 N.C. 190, 84 S.E.2d 817; Landini v. Steelman, 243 N.C. 146, 90 S.E.2d 377, and cases cited.

Relevant to the alleged negligence of defendant, G.S. § 20-174(e) provides: '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, and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.' Independent of statute it is the duty of the motorist at common law to 'exercise due care to avoid colliding with' a pedestrian. Landini v. Steelman, supra.

With these well-settled principles in mind, a critical analysis of the evidence is necessary to decision.

Apart from testimony as to physical facts, the evidence consists of the testimony of Sheriff Pleasants and Deputy Sheriff Midgette (plaintiff's evidence) and of the testimony of defendant and Mrs. Carpenter (defendant's evidence).

It is noted that Pleasants and Midgette stated frankly they were not quoting defendant 'verbatim' or 'exactly' but were testifying to the substance of what defendant told them.

Pleasants, whose testimony was brief, testified: 'Mrs. Sears said that she was driving north on Highway No. 1 and saw a man crossing from the right side of the road to the left side, from her right to the left * * * she said it was from the right side that he came going east toward Raleigh and she stated that Mr. Rogers ran into her car from the right side of the road going across to the left side.'

Midgette, on direct examination, testified: 'She (Mrs. Sears) said she was going east on No. 1 at about 45 M.P.H. and when she saw him she took her foot off the accelerator. She said she was in the north lane, the left lane, the one farthest north * * * she said she was some 200 or 300 feet away when she first saw the pedestrian. She said when she first saw him he was stepping into the southern lane going across the highway, going in a northern direction. She said he looked like he was kind of off balance, kind of running or trotting like he was trying to catch up himself, like he was going forward * * * she said * * * when she saw this man she took her foot off the accelerator and slowed down somewhat and when he got to the center portion of the road where there is no lane, that he gave her the impression that he slowed up and she hit the gas again and was going to go by him when she realized that he was going out there and she swerved to the left to miss him. She said she had slowed down to about 30 M.P.H. when she hit the gas again; that she didn't know about how fast she was going but not too much faster, that she had just hit the gas and that she swerved and heard something, some sound, hit the side of her car and that she didn't know just what it was.' (Our italics)

Midgette, on cross-examination, testified as follows: 'She stated * * * when she saw the man, that after she saw the man, he came to the center of that road on that V-part. She said that when he reached that part in the center he straightened up. I wouldn't say that she said he stopped, but I got the impression she meant that, but I don't know. * * * After he, the pedestrian, was in a position in the middle of that V-portion he was then outside of Mrs. Sears' lane of travel. After that time, she said he then started forward again towards her car after she had put her foot back on the gas to proceed. At that time, she attempted to swerve to her left, she said. She said the pedestrian's body brushed against her car, but she didn't know where, but somewhere against the side of the car. * * * Mrs. Sears said that there was a car proceeding ahead of her to her right on Highway No. 64 in the southern lane, the furtherest lane. She told me that there was a car in that lane and that when she first saw the man he came out from behind the car. When she referred to the man coming from behind that car, that would mean he came from behind the car from her, that would be in front of the car as it was proceeding.' (Our italics)

When all of Midgette's testimony is considered, it is clear the expression, 'the north lane, the left lane, the one farthest north,' as used in his testimony on direct examination, refers to No. 1 as distinguished from No. 64 rather than to the dividing line between the two lanes of No. 1; and his expression, 'the center portion of the road where there is no lane,' as used in his testimony on direct examination, refers to the 'V' or triangular area separating No. 1 and No. 64.

Defendant, in substance, testified: When approaching the point where No. 1 and No. 64 diverge, and when about 75 feet therefrom, she saw Rogers 'standing on or near the pavement that divides these two main highways.' He 'was walking more or less in the same direction (she) was going * * *' He was on her right, had crossed No. 64; but she did not see him cross No. 64. She took the right lane of No. 1. She took her foot off the gas; and, when she blew her horn, he seemed to look around. Then 'he began in a quickened walk or headlong motion onto (her) travelled portion of the road.' She then applied her brakes 'stronger' and swerved to the left lane of No. 1. The front of her car missed his body but something struck the car 'about middleway'. She continued to apply her brakes and stopped in about 25 feet. Looking back she saw the blow had been strong enough to cause him to fall to the pavement. She then parked her car and went back to see if there was anything she could do to help. When she saw the man (Rogers), 'he looked like any ordinary man that was capable of looking after himself * * *' She was 'real surprised to hear that he was 77 years old. He seemed to be very active.'

On cross-examination, defendant testified she didn't apply her brakes until she was 'two car lengths away from him. He was in no danger from me whatsoever.' She did not blow her horn until she was within 75 feet of him and did not 'let off' her accelerator until she was within four car lengths. She was going about 15 miles per hour when the collision occurred. Pleasants and Midgette misunderstood her if they got the impression she said she saw this man 'walking in a northerly direction from the southern edge of this highway across 54 feet of pavement to the northern edge of the highway.' Rogers was not weaving or unsteady and did not give that appearance. He gave no indication that he was going to or was likely to go upon the highway in front of her until he actually did so.

Mrs. Carpenter's testimony was substantially in accord with that of defendant. According to Mrs. Carpenter. When she first observed Rogers he was 'in the little paved portion' between the two highways. He 'seemed to be walking, but not toward our lane.' When he quickened his pace and 'started on to our travelled portion of the road,' defendant applied her brakes, swerved to the left and the front of her car passed him; but Rogers 'kept right on coming toward the side of the car' and 'walked into the right hand side of the door where (she) was sitting.' Defendant stopped within 'about two car lengths' beyond the point of collision. At the time of collision, the two left wheels of defendant's car were 'off the highway'.

Obviously, the testimony as to what defendant told the officers at the scene of the accident differs in several respects from evidence offered in behalf of defendant at the trial. While advertent to the rule that discrepancies and contradictions in the evidence must be resolved by the jury and not by the court, White v. Lacey, 245 N.C. 364, 369, 96 S.E.2d 1, the question here is whether, under either version of what occurred, the evidence was sufficient for submission to the jury.

We think it clear, if defendant's evidence is accepted, there was no reason for defendant to anticipate that Rogers would walk from his place of safety, outside the traffic lanes, into the path of defendant's approaching car. Unless and...

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