McCoy v. Dowdy

• Decision Date: 25 October 1972
• Docket Number: No. 7210SC692,7210SC692
• Citation: 16 N.C.App. 242,192 S.E.2d 81
• Court: North Carolina Court of Appeals
• Parties: Louise McCOY v. James Larry DOWDY.

Page 81

192 S.E.2d 81

16 N.C.App. 242

Louise McCOY v. James Larry DOWDY.

No. 7210SC692.

Court of Appeals of North Carolina.

Oct. 25, 1972.

Vaughan S. Winborne, Raleigh, for plaintiff appellant.

Cockman, Alvis & Aldridge by Jerry S. Alvis, Raleigh, for defendant appellee.

CAMPBELL, Judge.

On a motion for directed verdict by the defendant, the court must consider the evidence in the light most favorable to the plaintiff, and must grant the motion only if as a matter of law the evidence is insufficient to justify a verdict for the plaintiff.

The motion presents substantially the same question for sufficiency as did a motion for an involuntary nonsuit under former G.S. § 1--183. Younts v. State Farm Mutual Automobile Insurance Co., 281 N.C. 582, 189 S.E.2d 137 (1972).

The court summarized the proper test under former nonsuit procedure in Bowen v. Gardner, 275 N.C. 363, 168 S.E.2d 47 (1969).

Plaintiff's evidence in the light most favorable to her tends to show the following facts:

New Bern Avenue in the City of Raleigh, North Carolina, runs in an east-west direction; Seawell Avenue, running north- south, dead-ends into New Bern Avenue forming a 'T' intersection on the north side of New Bern Avenue. Seawell and New Bern Avenues both have sidewalks.

On the night of 30 November 1969 plaintiff was walking across New Bern Avenue from south to north on a line of travel which would be a prolongation of the Seawell Avenue sidewalk on the west side and perpendicular to New Bern Avenue. At about the same time, defendant was driving his automobile from east to west along New Bern Avenue, heading into the City of Raleigh. At a point somewhere midway in New Bern Avenue defendant's automobile struck the plaintiff. There were no traffic control lights at the intersection and no lines painted on the street indicating a pedestrian crosswalk. The intersection was illuminated by a street lamp, defendant's headlights were on, and there was no other traffic on the street at the time plaintiff was hit.

Plaintiff's testimony concerning the circumstances at the time when she crossed the street is generally confusing and in some points contradictory. However, contradictions are to be resolved in her favor. Various portions of the testimony are as follows:

'* * * When I first saw the car it was a good little ways from me. It was far enough away to not hit me. It was far enough away to not hit me.'

'I didn't go out in the street at first, I was walking across the street. When I looked to see the car and where I first saw it, i was crossing New Bern Avenue, I was going straight across.'

'The defendant's car was coming from my right. When I first saw it I was just walking across. I was already walking across, when I was walking I was fixing to cross.

Q. Fixing to cross, were you at the curb of the street, fixing to cross?

A. I was just about halfway the street.

Q. About halfway the street when you first saw it?

A. No, about halfway the street when I was crossing.'

'When I saw him and he was as close as from me to you, that is when I started running and he got faster.' (The distance was measured to be seventeen feet.)

'As I was crossing New Bern Avenue, I had gotten past the center line of that street when I first saw the defendant's car. I came through there out of the path. There was nothing that blocked my vision. I could see down New Bern Avenue going out of town.'

'* * * This is the post I testified that the light (street light) was on. When I first saw the car of the defendant, I was a good ways from the post. I was halfway across the street when I first saw the car of the defendant. That was the first time I saw his car. I started running when I seen he was going to hit me. * * *'

Plaintiff's witness, Leona Patterson, who was walking with the plaintiff, testified:

'* * * When I first saw the car of the defendant I was fixing to cross, I had just stepped down off the curb and Louise was in front of me. I could reach out and touch her.'

'* * * When I first saw it, I was standing at the curb, fixing to cross. The car was back up the street about half a block. When Louise got hit I wasn't quite to the center line and when she got hit I ran back and then I started hollering and waving my hands. There was no other traffic on the street at that time. When I waved my hand I stopped two cars that were going out of town.'

'* * * As we all were going across the street, well, she was about as far from me as the first bench. . . . (measured to be 25 1/2 feet). While she was up there ahead of me as we were going across the street, that is my best recollection now. I am saying that if she was that far ahead of me, she was just about, she was on the other side of the center line. The defendant was traveling in the lane of travel close to the center of New Bern, and was going into town.'

Other testimony tends to show that the plaintiff crossed New Bern Avenue directly in front of Seawell Avenue on a line straight across from the Seawell Avenue sidewalk. This evidence taken as true places the plaintiff within the area which is an unmarked pedestrian crossing, thus giving her the right of way under G.S. § 20--173(a) and Anderson v. Carter, 272 N.C. 426, 158 S.E.2d 607 (1968).

G.S. § 20--38(12) defines an intersection as the area embraced within the lateral boundary lines of two or more highways which joined one another at any angle, whether or not one such highway crosses the other. G.S. § 20--173(a) provides that where traffic control signals are not in place or in operation the driver of a vehicle shall yield the right of way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection. In Anderson v. Carter, Supra, the court defined an unmarked crosswalk as the prolongation of the lateral sidewalk lines.

A pedestrian who has the right of way at a crosswalk may not be held to be contributorily negligent as a matter of law for failure to see an approaching vehicle or for failure to use ordinary care for her own safety. The pedestrian is not required to anticipate negligence on the part of others. In the absence of anything which gave or should have given notice to the contrary, she was entitled to assume and to act upon the assumption, even to the last moment, that others would observe and obey the statute which required them to yield the right of way. Bowen v. Gardner, Supra. In the Bowen case the pedestrian did not see the vehicle approaching, but the court held that this rule applies where the pedestrian did see the vehicle before crossing.

In Bowen the plaintiff walked 24 to 26 feet across the street before she was hit. The court held that whether the speed of the motorcycle, its proximity, or manner of operation were such that plaintiff,...