McCoy v. Dowdy
| Decision Date | 25 October 1972 |
| Docket Number | No. 7210SC692,7210SC692 |
| Court | North Carolina Court of Appeals |
| Parties | Louise McCOY v. James Larry DOWDY. |
Vaughan S. Winborne, Raleigh, for plaintiff appellant.
Cockman, Alvis & Aldridge by Jerry S. Alvis, Raleigh, for defendant appellee.
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:
'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.)
Plaintiff's witness, Leona Patterson, who was walking with the plaintiff, testified:
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,...
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