Garmon v. Thomas

• Decision Date: 04 February 1955
• Docket Number: No. 601,601
• Citation: 85 S.E.2d 589,241 N.C. 412
• Parties: Clarence O. GARMON v. Wade THOMAS.
• Court: North Carolina Supreme Court

Page 589

85 S.E.2d 589

241 N.C. 412

Clarence O. GARMON v. Wade THOMAS.

No. 601

Supreme Court of North Carolina.

Feb. 4, 1955

Welling & Welling, Elbert E. Foster, Charlotte, for plaintiff.

Kennedy, Kennedy & Hickman, Charlotte, for defendant.

DENNY, Justice.

The defendant challenges the correctness of the refusal of the court below to sustain his motion for judgment as of nonsuit on the ground that the plaintiff was contributorily negligent as a matter of law.

In relying on this assignment of error, the defendant necessarily concedes his own negligence. Therefore, the question presented is whether the evidence adduced in the trial below, when considered in the light most favorable to the plaintiff, clearly establishes his negligence as a contributing or proximate cause of his injury. If the plaintiff's negligence did contribute to his injury it need not have been the sole proximate cause thereof in order to bar recovery, but it is sufficient if it was a proximate cause or one of them. Badders v. Lassiter, 240 N.C. 413, 82 S.E.2d 357; Lyerly v. Griffin, 237 N.C. 686, 75 S.E.2d 730; Stevens v. Southern R. R. Co., 237 N.C. 412, 75 S.E.2d 232; Dawson v. Seashore Transportation Co., 230 N.C. 36, 51 S.E.2d 921; Godwin v. Atlantic Coast Line R. R., 220 N.C. 281, 17 S.E.2d 137; Hampton v. Hawkins, 219 N.C. 205, 13 S.E.2d 227.

The burden of showing contributory negligence is on the defendant and a motion for judgment as of nonsuit will not be allowed if the controlling and pertinent facts are in dispute, nor where opposing inferences are permissible from plaintiff's proof. Battle v. Cleave, 179 N.C. 112, 101 S.E. 555; Ferguson v. Ashville, 213 N.C. 569, 197 S.E. 146; Templeton v. Kelley, 215 N.C. 577, 2 S.E.2d 696. But the plaintiff may relieve the defendant of the burden of showing contributory negligence when it appears from his own evidence that he was contributorily negligent. Godwin v. Atlantic Coast Line R. R., supra.

There is some evidence with respect to skid marks that would tend to show that the defendant became aware of plaintiff's presence on the road while he was a greater distance from him than that shown by his oral testimony. However, the doctrine of last clear chance is not pleaded. Neither is there any evidence which would have put the defendant on notice, if it had been that the plaintiff was incapacitated or incapable of exercising ordinary care for his own safety. Aydlett v. Keim, 232 N.C. 367, 61 S.E.2d 109. The plaintiff's testimony shows that he was advertent to the fact that the road was in use as a highway.

G.S. § 20-174, subsection (a) provides that: '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. ' While in subsection (e) of this statute it is provided as follows: '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.'

The defendant, pursuant to the provisions of the above statute, had the right of way on the occasion under consideration subject to the provisions of subsection (e) thereof.

The facts disclosed by this record are unusual in certain respects. The defendant traveled from 700 to 1,000 feet along a main traveled highway at approximately 25 miles per hour, partly blinded by the sun, and never saw the plaintiff until he was too close to him to stop before hitting him. On the other hand, the plaintiff, according to his testimony, never saw the approaching truck until it was within 5 feet of him although he testified that he looked all the way down the road toward Wadesboro just before he started across the highway and that the defendant's truck was not in sight. He further testified that he glanced to his right when he was halfway across the highway and saw nothing. But all the evidence supports the view that the plaintiff could have seen the defendant's truck at any time while it was traveling toward him for the distance of 700 to 1,000 feet if he had looked. Furthermore, there is no evidence that the defendant was driving his truck at an excessive or illegal rate of speed. Conceding, however, that the defendant should have seen the plaintiff and given him warning of his approach, the plaintiff was at all times under the duty to see the defendant and to yield the right of way to him. In our opinion, both parties were negligent. The defendant was negligent in failing to exercise due care to avoid colliding with the plaintiff on the highway, Lewis v. Watson, 229 N.C. 20, 47 S.E.2d 484, and the plaintiff was negligent in failing to exercise reasonable care for his own safety in that he failed to keep a timely lookout to see what he should have seen and could have seen if he had looked. Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246; Jenkins v. Johnson, 186 Va. 191, 42 S.E.2d 319. The facts compel the view that the defendant's truck was near the plaintiff and plainly visible to him if he had looked at the time he walked into its path. 'There are none so blind as those who have eyes and will not see. ' Baker v. Atlantic Coast Line R. Co., 205 N.C. 329, 171 S.E. 342, 343.

The facts in the case of Williams v. Henderson, 230 N.C. 707, 55 S.E.2d 462, 463, which is relied upon by the plaintiff, are distinguishable from those here, as well as the facts in Tysinger v. Coble Dairy Products, supra, and similar cases. In the Williams case, the deceased lived on the north side of the highway. She left her home to go to her mail box on the southern edge of the highway. As she crossed the gighway, two heavily loaded oil trucks were approaching from the west traveling 45 or 50 miles an hour. The first truck passed the deceased. As the second truck approached, deceased was standing at the mail box on the shoulder of the road, apparently oblivious of the approach of the second truck. When the truck was within 15 or 20 feet of the deceased, she turned suddenly and "started back across the highway in a fast walk.' ' She was hit by the truck and thrown 112 feet while the truck traveled 250 feet before it stopped. This Court, speaking through Barnhill, J., now Chief Justice, said: 'Here the defendant was operating his heavily loaded truck at 45 to 50 miles per hour within 150 feet of the vehicle just ahead. As the road was straight he saw or should have seen the deceased on the shoulder of the highway standing at the mail box even before the first truck passed her. She had her back to him and was apparently oblivious of his approach. Yet he did not slacken his speed or apply his brakes or sound his horn. These circumstances present a case for the jury.'

In the case of Tysinger v. Coble Dairy Products, supra, the plaintiff's deceased was walking in the direction from which the defendant's truck was approaching, and suddenly started to cross the highway and was hit by the side of the truck. The truck had been visible for at least 300 yards. Winborne, J., speaking for the Court, said [225 N.C. 717, 36 S.E.2d 251]: '* * * it was the duty of plaintiff's testator, in crossing the highway at a point other than within a marked cross walk or within an unmarked cross walk at an intersection, to yield the right of way to defendant's truck approaching upon the roadway, and the operator of the truck, in the absence of anything which gave or should have given notice to the contrary, was entitled to assume and to act upon the assumption that plaintiff's testator would use reasonable care and caution commensurate with visible conditions, and that he would observe and obey the rules of the road. * * * And there is no evidence of anything that gave or should have given notice to the operator of defendant's truck that plaintiff's testator was unaware of the approach of the truck, and would not obey the rule of the road, until the time the testator started across the highway, nor is there evidence as to how close the truck was to him when he started across--except the fact that he was stricken by the side of the truck near the center of the highway. Under such circumstances, to infer that the operator of the truck failed to exercise due care to avoid colliding with the testator upon the roadway, or to infer that a failure to give warning by sounding the horn was a proximate cause of the collision between the truck and testator, * * * would be mere speculation.'

In Jenkins v. Johnson, supra, the decedent was observed standing on the south side of the highway. As soon as two motor vehicles traveling east passed him, he started across the highway. Defendant, traveling west at between 25 and 30 miles an hour, first saw decedent when he (decedent) was about the center of the highway and defendant was 25 or 30 steps to the east. Defendant immediately blew his horn. When he saw that decedent did not intend to stop and permit him to pass, he swerved his car to the right. At the same time decedent increased his speed and walked or half ran into the side of defendant's car when the right wheels were at least 3 feet off the hard surface of the road shoulder. The Supreme Court of Virginia said [186 Va. 191, 42 S.E.2d 320]: 'The highway was level and straight for approximately one-quarter of a mile ests and west of the point of impact. After the motor vehicles traveling east had passed, there was nothing to prevent either defendant or decedent from seeing the other. If defendant was negligent in failing to see decedent, decedent was equally negligent in failing to see defendant's car. If it be conceded that the defendant was negligent in failing to see decedent in time to have avoided the accident, then it must be conceded that if decedent had stopped walking at any point...