Meadows v. Lawrence

Decision Date04 June 1985
Docket NumberNo. 8422SC684,8422SC684
Citation75 N.C.App. 86,330 S.E.2d 47
CourtNorth Carolina Court of Appeals
PartiesClaude Eugene MEADOWS and Bernice Jenkins Meadows v. Craig John LAWRENCE.

Harris & Pressly, by Edwin A. Pressly and Gary W. Thomas, for plaintiff-appellant.

Sowers, Avery & Crosswhite, by William E. Crosswhite, for defendant-appellee.

BECTON, Judge.

I

Plaintiffs, Claude Eugene Meadows and Bernice Jenkins Meadows, filed this negligence action against defendant, Craig John Lawrence, the driver, to recover damages for injuries sustained when Lawrence's car struck Mr. Meadows. Lawrence answered, alleging Mr. Meadows' contributory negligence as a proximate cause of the accident. Lawrence subsequently moved for, and was granted, summary judgment. Plaintiffs appeal, arguing that genuine issues of fact exist as to whether Meadows was contributorily negligent, and whether Lawrence had the last clear chance to avoid striking Meadows. We conclude that the evidence establishes Meadows' contributory negligence as a matter of law. Furthermore, as the plaintiffs failed to plead last clear chance, we do not consider that issue on the merits. We therefore affirm the trial court's entry of summary judgment.

II Factual Background

On 28 August 1981, at about 10:30 p.m., Lawrence pulled out of a bowling alley parking lot onto U.S. Highway 64 West, heading towards Statesville. The weather conditions that night were clear and dry. As Lawrence pulled out, he saw the headlights of a car approaching from the opposite direction. He passed this car, and a second or two later, Lawrence first saw Meadows in the middle of his traffic lane at a distance Lawrence estimated at 50 to 70 feet.

Lawrence swerved to the left and applied his brakes. According to Lawrence, Meadows then staggered one or two steps at a forty-five degree angle towards the center of the highway. The collision took place at the left center of Lawrence's traffic lane; Meadows was struck by the middle portion of the bumper of Lawrence's vehicle. Lawrence testified that just before the accident, he was travelling at about 43 miles per hour, and that his headlights were on low beams at all times. Lawrence estimated that ten to fifteen seconds elapsed from the time he pulled out of the parking lot until the time of impact; he also estimated the distance between the point where he pulled out and the point of impact at 100 to 150 feet. The evidence showed that that portion of highway between the bowling alley and the site of the accident is straight with a slight uphill grade, and the visibility is unobstructed. According to Lawrence, there is a street light at the parking lot exit, and "a few" more street lights between the parking lot and the point of impact.

Meadows submitted the affidavit of Elmer Cromie. Cromie stated that shortly before the accident he had travelled along that same stretch of Highway 64 in the same westerly direction as Lawrence. He stated that he had his headlights on low beam and that he first saw Meadows crossing his traffic lane from about 65 feet away, and that he had about 1 1/2 seconds to maneuver around Meadows. He did so successfully, without taking his foot off the accelerator or applying his brakes.

III

In his motion for summary judgment, Lawrence alleged that Meadows was contributorily negligent as a matter of law "in that he placed himself in the main travelled portion of a U.S. Highway and failed to see the oncoming vehicle and remove himself from the lane of traffic in which the defendant was proceeding." Meadows, however, cites Troy v. Todd, 68 N.C.App. 63, 313 S.E.2d 896 (1984), as authority for his contention that the issue of contributory negligence should be resolved by a jury.

In a motion for summary judgment, the movant has the burden of proving that there is no genuine issue as to any material fact, and that the movant is entitled to judgment as a matter of law. Ragland v. Moore, 299 N.C. 360, 261 S.E.2d 666 (1980). All reasonable inferences of fact are drawn against the movant. Id. Issues of contributory negligence, like issues of negligence, are rarely appropriate for summary judgment, Ballenger v. Crowell, 38 N.C.App. 50, 247 S.E.2d 287 (1978), as it usually remains for a jury to apply the standard of the prudent person to the facts. Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972). However, where the uncontroverted evidence shows that a plaintiff has failed to use due care and that such contributory negligence was at least one of the proximate causes of plaintiff's injuries, a defendant is entitled to summary judgment. Brooks v. Francis, 57 N.C.App. 556, 291 S.E.2d 889 (1982).

Statutory and common law provide the standard of due care applicable to a person in Meadows' situation. N.C.Gen.Stat. Sec. 20-174(a) (1983) requires that a 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." Although a violation of G.S. Sec. 20-174(a) (1983) is not contributory negligence per se, Dendy v. Watkins, 288 N.C. 447, 219 S.E.2d 214 (1975), a failure to yield the right-of-way to a motor vehicle may constitute contributory negligence as a matter of law:

[T]he court will nonsuit a plaintiff-pedestrian on the ground of contributory negligence 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. at 364, 261 S.E.2d at 668 (quoting Blake v. Mallard 262 N.C. 62, 65, 136 S.E.2d 214, 216 (1964), noting functional equivalence of nonsuit, directed verdict, and summary judgment).

The statutory duty is derived from the common law duty to use ordinary care to protect oneself from injury. In a situation factually similar to the one before us, the Supreme Court stated:

It was plaintiff's duty to look for approaching traffic before she attempted to cross the highway. Having started, it was her duty to keep a lookout for it as she crossed.

Blake v. Mallard, 262 N.C. at 65, 136 S.E.2d at 216-7. Accord Garmon v. Thomas, 241 N.C. 412, 85 S.E.2d 589 (1955) (plaintiff was negligent in failing to keep a "timely lookout").

The courts of this State have, on numerous occasions, applied the foregoing standard of due care when the plaintiff was struck by a vehicle while crossing a road at night outside a crosswalk. If the road is straight, visibility unobstructed, the weather clear, and the headlights of the vehicle in use, a plaintiff's failure to see and avoid defendant's vehicle will consistently be deemed contributory negligence as a matter of law. See Price v. Miller, 271 N.C. 690, 157 S.E.2d 347 (1967); Blake v. Mallard; Hughes v. Gragg, 62 N.C.App. 116, 302 S.E.2d 304 (1983); Thornton v. Cartwright, 30 N.C.App. 674, 228 S.E.2d 50 (1976). The sole case relied upon by plaintiff, Troy v. Todd, involves a situation where plaintiff-pedestrian was walking on the edge of defendant's lane with his back towards traffic, and specifically distinguishes the cases on which we rely.

In applying the law to the instant facts, we review the evidence in the light most favorable to Meadows, the non-movant. In so doing, we find that Meadows was standing in Lawrence's lane of Highway 64; that Lawrence's car, with its headlights on, turned onto the road at a distance of at least 100 feet from...

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