McNeil v. Gardner

• Decision Date: 17 December 1991
• Docket Number: No. 915SC37,915SC37
• Citation: 411 S.E.2d 174,104 N.C.App. 692
• Parties: Albert A. McNEIL, Administrator of the Estate of Clementine Smith McNeil, Plaintiff, v. Derek Kenneth GARDNER, Defendant.
• Court: North Carolina Court of Appeals

Page 174

411 S.E.2d 174

104 N.C.App. 692

Albert A. McNEIL, Administrator of the Estate of Clementine

Smith McNeil, Plaintiff, v. Derek Kenneth GARDNER, Defendant.

No. 915SC37.

Court of Appeals of North Carolina.

Dec. 17, 1991.

Yow, Culbreth & Fox, by Stephen E. Culbreth, Wilmington, for plaintiff, appellant.

Smith and Smith, by Walter M. Smith, Wilmington, for defendant, appellee.

HEDRICK, Chief Judge.

The trial judge clearly directed a verdict for defendant because he felt that the evidence disclosed plaintiff's intestate's negligence as a matter of law. When plaintiff argued to the trial court that the issue of defendant's negligence and the issue of last clear chance had not been ruled on, the court stated "I am not going to let it go to the jury on that ... I am going to let the Court of Appeals decide this issue before we do that."

We hold the trial judge erred in not submitting to the jury the issues of negligence and contributory negligence. When the evidence is considered in the light most favorable to the plaintiff it is sufficient to raise the issue of negligence on the part of defendant in the operation of his motor vehicle which struck and killed plaintiff's intestate.

From the evidence, the jury could find that defendant operated his motor vehicle without keeping a proper lookout, at an excessive and unlawful rate of speed under the circumstances, that he failed to decrease the speed of his motor vehicle as he approached an intersection, and that he failed to see plaintiff's intestate and her daughter as they crossed approximately thirty feet of the travel portion of Highway 74 directly in front of his motor vehicle before the accident. From the evidence, the jury could find that one or more of these negligent acts upon the part of defendant was a proximate cause of death of plaintiff's intestate.

Defendant, citing and relying on Meadows v. Lawrence, 75 N.C.App. 86, 330 S.E.2d 47, affirmed, 315 N.C. 383, 337 S.E.2d 851 (1986), states in his brief "the language of the North Carolina Court of Appeals in a case very similar to the factual situation in the case at bar where summary judgment was granted in favor of a defendant on the grounds that the plaintiff's intestate was contributorily negligent as a matter of law is instructive." [Emphasis ours]. The facts in Meadows, characterized by defendant as "very similar" were as follows: The defendant pulled out of a bowling alley parking lot onto Highway 64 West, passed a car going in the opposite direction, and a second or two later saw the plaintiff in the middle of his traffic lane at a distance of about 50 to 70 feet. The defendant swerved to the left and applied his brakes. The plaintiff, in an intoxicated condition, staggered one or two steps at a 45 degree angle towards the center of the highway. The middle portion of the bumper of the defendant's car struck the plaintiff, and the accident occurred in the left center of defendant's lane of travel.

The facts in the present case are hardly similar. Plaintiff's intestate was not intoxicated, defendant, although he had a straight and level stretch of roadway, did not even see her or her daughter even though they were wearing bright clothing and had crossed approximately 30 feet of the travel portion of the highway before plaintiff's intestate was killed. Certainly plaintiff's intestate did not stagger back to the middle of the lane in which she was struck and obviously, since defendant did not see her, he did not swerve to avoid her as did the defendant in Meadows.

We also hold the trial court erred in directing a verdict for defendant on the grounds that plaintiff's intestate's contributory negligence was a bar to the claim as a matter of law.

'[T]he general rule is that a directed verdict for a defendant on the ground of contributory negligence may only be granted when the evidence taken in the light most favorable to plaintiff establishes her negligence so clearly that no other reasonable inference or conclusion may be drawn therefrom. Contradictions or discrepancies in the evidence even when arising from plaintiff's evidence must be resolved by the jury rather than by the trial judge. [Citations omitted]' Clark v. Bodycombe, 289 N.C. 246, 251, 221 S.E.2d 506, 510 (1976). Accord, Rappaport v. Days Inn, 296 N.C. 382, 250 S.E.2d 245 (1979).

Helvy v. Sweat, 58 N.C.App. 197, 199, 292 S.E.2d 733, 734-35, disc. review denied, 306 N.C. 741, 295 S.E.2d 477 (1982). Our courts have held that a pedestrian's failure to yield the right of way as dictated by G.S. 20-174(a) is not contributory negligence per se, but is only evidence of negligence to be considered with other evidence in the case in determining whether the plaintiff is chargeable with negligence which proximately caused or contributed to his injury. Dendy v. Watkins, 288 N.C. 447, 219 S.E.2d 214 (1975). "[T]he court will only nonsuit ... when all the evidence so clearly establishes his failure to yield the right of way as one of the proximate causes of his injuries that no other reasonable conclusion is possible." Ragland v. Moore, 299 N.C. 360, 364, 261 S.E.2d 666, 668 (1980). "A rule which by definition requires contributory negligence to be so clear 'that no other reasonable inference may be drawn therefrom' will by its nature be satisfied only infrequently and only in extreme circumstances." Wagoner v. Butcher, 6 N.C.App. 221, 231-32, 170 S.E.2d 151, 158 (1969).

While the evidence in the present case is sufficient to permit the jury to find that plaintiff's intestate was negligent in that she did not keep a proper lookout, did not yield the right of way to defendant, and that one or more of these negligent acts was a proximate cause of the collision and her death, we cannot say under all the circumstances of this case that the evidence so clearly establishes her negligence that "no other reasonable inference or conclusion may be drawn therefrom." The evidence in the present case tends to show that plaintiff's intestate and her daughter stopped and looked in both directions before they began to cross the highway and that they did not see any approaching vehicles. The evidence also tends to show that plaintiff's intestate, with her daughter, crossed 30 feet of the travel portion of the highway before she was struck by defendant's vehicle.

From this evidence the jury could infer that the negligence of defendant, hereinbefore described, was the proximate cause of the collision, and not the negligence of plaintiff's intestate in failing to see defendant's vehicle. Ordinarily, proximate cause is a question for the jury.

We hold the trial judge erred in directing a verdict for defendant, and the cause will be remanded to the Superior Court for a new trial.

We need not discuss at this time the question of whether the court erred in not submitting the issue of last clear chance, since that issue can only be decided from the evidence at the new trial.

New trial.

GREENE, J., concurs.

EAGLES, J., dissents.

E...