Grisanti v. United States, Civ. No. 1939.

Decision Date02 May 1968
Docket NumberCiv. No. 1939.
Citation284 F. Supp. 308
CourtU.S. District Court — Eastern District of North Carolina
PartiesJoseph P. GRISANTI, Plaintiff, v. UNITED STATES of America, Defendant.

J. Allen Adams, of Young, Moore & Henderson, Raleigh, N. C., for plaintiff.

Gerald L. Bass, Asst. U. S. Atty., Eastern District of North Carolina, Raleigh, N. C., for defendant.

ORDER

HEMPHILL, District Judge.

This cause was tried before this court without a jury on April 23, 1968, in Raleigh, North Carolina. The court, after hearing witnesses for plaintiff and defendant, and having read the contentions of the parties, makes the following:

FINDINGS OF FACT

This is an action for personal injuries instituted under the Tort Claims Act, 28 U.S.C.A. Sections 1346, 2671 et seq. The plaintiff, Joseph P. Grisanti, was injured on May 12, 1966, when he collided with a 1964 Ford automobile owned by the defendant and operated by its agent and servant, Joseph E. Carter. It is stipulated that the accident occurred on May 12, 1966, at about 8:30 p. m. on Peace Street in the City of Raleigh, North Carolina, when plaintiff, a pedestrian, was struck by defendant's automobile and was injured. Joseph E. Carter was operating defendant's automobile in the course and scope of his employment at the time of the collision. Peace Street runs in an east-west direction and is separated in the middle by a white line. Motor vehicles are operated in both directions on this street. The street is 38 feet wide.

The credible evidence reflects that on May 12, 1966, at approximately 8:30 p. m., Joseph E. Carter was operating a 1964 Ford in a southerly direction on North Person Street in the City of Raleigh, North Carolina. North Person Street runs in a north-south direction and intersects Peace Street. Mr. Carter made a right turn from North Person Street on to Peace Street. He was heading in a western direction on Peace Street approaching North Blount Street. North Blount Street runs in a north-south direction and is parallel to North Person Street. There is an electrically-operated stop light at the intersection of Peace Street and North Blount Street. This light turns from green to yellow to red. This light was operating on May 12, 1966, at approximately 8:30 p. m. A short distance after passing the intersection of Peace Street and North Blount Street, Harp Street intersects Peace Street. There is not a stop light at this intersection. The various witnesses described it as a small street with a stop sign to help control the flow of traffic. Harp Street does not continue across Peace Street in a southerly direction. It comes to a dead end at Peace Street.

Peace Street continues in a western direction until it intersects Wilmington Street. This intersection is one city block from the intersection of Peace and North Blount Streets. There is an electrically-operated control light at the intersection of Wilmington and Peace Streets. The traffic light turns from green to yellow to red. This light was operating on May 12, 1966, at approximately 8:30 p. m. Carter made a right turn from North Person Street to North Blount Street. It appears that when he first turned right on Peace Street, the light at the intersection of Peace and Blount Streets was red for his lane of travel. He stated that the traffic light turned to green and he proceeded through the intersection at Peace and North Blount Streets, that his speed was approximately 15 miles an hour and in no respect was it over 20 miles an hour. The posted speed limit on Peace Street is 35 miles an hour.

Carter proceeded though the intersection of Peace and Blount Streets. It was dark at this hour of the evening and he had his lights on, was looking straight ahead as he went through the intersection. He did not see any pedestrians on or near the intersection. After passing through the intersection, he felt his automobile collide with "something." He immediately stopped his car and found the plaintiff lying in the street near the northern curb of Peace Street.

From the intersection at Peace and North Blount Streets you have an unobstructed view as you look east and west on Peace Street. As you look east on Peace Street from the intersection of North Blount Street, you can see where Peace Street comes to a dead end at North Person Street. At this point, Peace Street is straight and visibility is good. As you look west on Peace Street from the intersection, you have an unobstructed view for a number of blocks. From the intersection of Peace and North Blount Streets one can see the stop light at Wilmington Street and also at Salisbury Street.

A Mr. and Mrs. George Barbour testified for the defendant. Both testified that they were traveling in an automobile being operated by Mr. Barbour, and were following the automobile being operated by Mr. Carter. Mrs. Barbour testified that Mr. Carter's car had passed through the intersection and was two or three car lengths from the intersection when she saw the government car strike someone. Mr. Barbour also stated that Mr. Carter's car was past the intersection before colliding with the plaintiff. Mr. Barbour stated that his speed was not in excess of 20 miles per hour. Both witnesses testified that Mr. Barbour turned his car to the right and parked parallel to the north curb of Peace Street. Plaintiff was lying in front of their car. A police car operated by W. G. Arnold later was parked to the rear of Mr. Barbour's car. Both of these witnesses testified that they did not see any pedestrians on or about the intersection of Peace and North Blount Streets. They also testified that other cars were traveling on Peace Street.

Raleigh Police Officer Arnold testified that he received a call at 8:37 p. m. to investigate the accident. He arrived at the accident scene approximately five mintues later, and found plaintiff lying in the north lane of Peace Street, 44 feet from the west curb of North Blount Street. Carter had stated that the plaintiff was 40-50 feet from the west curb of North Blount Street. Miss Anne Daniel, plaintiff's witness, testified that she measured the distance from where plaintiff was lying to the west curb of North Blount Street and found the distance to be 67 feet. Officer Arnold further testified that Mr. Carter's car was parked in the right lane of Peace Street and was approximately 30 feet from the plaintiff. He further testified that both lights at North Blount and Wilmington Streets were functioning on the night in question and that there were not any pedestrian crosswalks between North Blount and Wilmington Streets. Carter had testified that there were not any crosswalks between these two intersections. Anne Daniel testified that she had lived all of her life in the house on the northwest corner of Peace and North Blount Streets and that there were no crosswalks between North Blount and Wilmington Streets. She also testified that a pedestrian had an unobstructed view as you look east and west on Peace Street. This testimony was credible, corroborative.

The plaintiff testified that he was crossing Peace Street from south to north at the time of the accident. He stated on cross-examination that he looked both east and west on Peace Street before entering the intersection. He further stated that after entering the intersection he did not look either east or west again. He was looking straight ahead with his head down as it was "natural for him to do this."

There is no credible evidence that Carter was speeding, and the court finds as a fact that he had a green light as he passed through the intersection of Peace and Blount Streets. Plaintiff was apparently crossing at some place other than at the intersection. Carter's brakes were apparently in good order.

The facts do not reveal that Carter could or should have seen plaintiff. The Barbours did not see him. It appears that his use of the street at other than a crosswalk or intersection made it difficult to see him.

Plaintiff did not cross Peace Street when a red light was facing traffic on Peace Street, but crossed when the traffic light was green facing Peace Street and red facing Blount Street. Plaintiff testified he saw the lights of a car approaching from east to west on Peace Street. There is no testimony plaintiff thereafter took any precaution. Plaintiff's clothing was exhibited to the court,1 but there was no evidence that this materially affected the issue of fact revolving around Carter's failure to see plaintiff.

-AND- CONCLUSIONS OF LAW

A. Plaintiff has the burden of proving his right to recovery by the preponderance or greater weight of the evidence. As a matter of law, the court concludes plaintiff has failed to discharge this responsibility by credible evidence. Defendant has no duty to prove plaintiff's lack of right of recovery.

B. North Carolina General Statutes § 20-174 sets out the duties and rights of pedestrians in crossing streets. That statute reads as follows:

(a) Every 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.
(b) Any pedestrian crossing a roadway at a point where a pedestrian tunnel or overhead pedestrian crossing has been provided shall yield the right-of-way to all vehicles upon the roadway.
(c) Between adjacent intersections at which traffic control signals are in operation pedestrians shall not cross at any place except in a marked cross-walk.
(d) It shall be unlawful for pedestrians to walk along the traveled portion of any highway except on the extreme left-hand side thereof, and such pedestrians shall yield the right-of-way to approaching traffic.
(e) 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
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