Grant v. Royal, 605
| Decision Date | 20 May 1959 |
| Docket Number | No. 605,605 |
| Citation | 108 S.E.2d 627,250 N.C. 366 |
| Parties | George R. GRANT, Trustee for Mrs. Rebecca Kennedy, Incompetent, v. David Stephen ROYAL. |
| Court | North Carolina Supreme Court |
Tally, Tally & Taylor, and Donald B. Strickland, Fayetteville, for plaintiff, appellant.
Nance, Barrington & Collier, by James R. Nance, Fayetteville, and Rudolph G. Singleton, Jr., Fayetteville, for defendant, appellee.
The record in this case leaves the impression that two estimable ladies, born in the horse and buggy days, failed fully to appreciate the speed of present day automobile traffic and the dangers incident thereto. On foot, they attempted to cross a four-lane street at a place where the authorities had made no provision for such crossing. Darkness, rain, wind, fog, clothing and umbrella blending with the color of the street surface, left the defendant insufficient time to avoid them after he could have discovered their intention to continue across his lane of traffic. They had stopped or hesitated in a place of safety from his intended movement. Even so, he stopped after merely bumping them without running over them.
Plaintiff and her witness were crossing from the unlighted side of the street at a place where the defendant had a right to assume and to act on the assumption that pedestrians would recognize his right of way and not obstruct it. Garmon v. Thomas, 241 N.C. 412, 85 S.E.2d 589; Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246; Mitchell v. Melts, 220 N.C. 793, 18 S.E.2d 406. (See North Carolina Index, Vol. 1, pp. 264, 265, for full citation of cases.) No presumption of negligence arises from the mere fact there has been an accident and an injury. Fleming v. Twiggs, 244 N.C. 666, 94 S.E.2d 821; Merrell v. Kindley, 244 N.C. 118, 92 S.E.2d 671; Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661.
In this case there is no evidence of speed. All the evidence indicates the defendant had only an instant in which to take evasive action after he could have observed the ladies suddenly decided to hurry across the two lanes for northbound traffic. The wonder is that complete success to avoid the accident failed by so narrow a margin.
Mrs. Ella Garrett Beard, a witness for plaintiff, asked defendant at the hospital after Mrs. Rebecca Kennedy had been carried there this question: 'Why did you do it; didn't you see them? ' He replied: 'Yes, I saw them, but I thought they had stopped.'
At the hospital this occurred in the presence of Miss Ida Garrett, her sister, Mrs. Burns and defendant: ...
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