Oxendine v. Lowry, 741

• Decision Date: 19 December 1963
• Docket Number: No. 741,741
• Citation: Oxendine v. Lowry, 133 S.E.2d 687, 260 N.C. 709 (N.C. 1963)
• Parties: Ertle OXENDINE, by his Next Friend, Pearl Oxendine, v. Bronford LOWRY.
• Court: North Carolina Supreme Court

Page 687

133 S.E.2d 687

260 N.C. 709

Ertle OXENDINE, by his Next Friend, Pearl Oxendine, v.Bronford LOWRY.

No. 741

Supreme Court of North Carolina.

Dec. 19, 1963

Ellis E. Page, Lumberton, for defendantappellant.

McLean & Stacy, Lumberton, for plaintiffappellee.

PARKER, Justice.

Defendant offered evidence.Considering plaintiff's evidence in the light most favorable to him and giving him the benefit of every reasonable inference to be drawn therefrom, and considering so much of defendant's evidence as is favorable to him, the court properly submitted the case to the jury, and defendant's assignment of error to the court's denial of his motion for judgment of compulsory nonsuit made at the close of all the evidence is overruled.G.S. § 1-183;Rosser v. Smith, 260 N.C. 647, 133 S.E.2d 499.

Defendant in his answer alleged a conditional plea of contributory negligence on plaintiff's part to bar recovery.Among the various acts of alleged negligence by plaintiff, which defendant avers contributed proximately to his injuries, is the allegation that plaintiff was negligent in operating his bicycle in the nighttime and more than a half hour after sunset on Rural Paved Road #1513 without having his bicycle equipped with a lighted lamp on the front thereof, visible under normal atmospheric conditions from a distance of at least three hundred feet in front of his bicycle, and without having his bicycle equipped with a reflex mirror or lamp on the rear, exhibiting a red light visible under like conditions from a distance of at least two hundred feet to the rear of such bicycle, in violation of G.S. § 20-129(e).

Plaintiff's evidence shows that on this occasion his bicycle was not equipped with a lighted lamp on the front thereof when he was struck.

The court in its charge in respect to the second issue of contributory negligence of plaintiff stated ipsissimis verbis G.S. § 20-129(e), and immediately thereafter charged the jury as follows, which appellant assigns as error:

'And so that statute requires that a bicycle when used or operated at night, shall have a lighted light on the front, visible under normal atmospheric conditions, from a distance of at least 300 feet in front of the bicycle.With respect to that portion, gentlemen, and I understand it is admitted by plaintiff in his testimony that he had no lighted lamp upon the front of his bicycle, and I instruct you that the provision respecting a front lamp on a bicycle, is designed for the benefit of those approaching a bicycle from the front, for the protection of the cyclist from such.It does not require a light of such intensity as to render objects visible along the highway in front of a bicycle, and the violation of the statute in respect to failing to have a headlight as required by the law, I instruct as a matter of law would not be a proximate cause of a collision resulting from plaintiff being struck in the rear, as alleged in this action.'

It is a fundamental principle that the only negligence of legal importance is negligence which proximately causes or contributes to the injury under judicial investigation.McNair v. Richardson, 244 N.C. 65, 92 S.E.2d 459; Cox v. Hennis Freight Lines and Matthews v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25;Smith v. Whitley, 223 N.C. 534, 27 S.E.2d 442;Byrd v. Express Co., 139 N.C. 273, 51 S.E. 851.

We take judicial notice of the fact that in North Carolina about 8:15 p. m. on 4 June 1961 was within the period of time from a half hour after sunset to a half hour before sunrise.Weavil v. Myers, 243 N.C. 386, 90 S.E.2d 733;31 C.J.S.Evidence§ 100, p. 700.

Under G.S. § 20-38(ff) of our Motor Vehicles Act, bicycles are 'deemed vehicles, and every rider of a bicycle upon a highway shall be subject to the provisions of this article applicable to the driver of a vehicle except those which by their nature can have no application. 'Tarrant v. Pepsi-Cola Bottling Co., 221 N.C. 390, 20 S.E.2d 565;Van Dyke v. Atlantic Greyhound Corp., 218 N.C. 283, 10 S.E.2d 727.

'The statutes prescribing lighting devices to be used by motor vehicles operating at night (G.S. §§ 20-129and129.1) were enacted in the interest of public safety.State v. Norris, 242 N.C. 47, 86 S.E.2d 916.A violation of these statutes constitutes negligence as a matter of law. 'Scarborough v. Ingram, 256 N.C. 87, 122 S.E.2d 798.

What is the proximate cause of an injury is ordinarily a question to be determined by the jury as a fact in view of the attendant circumstances.Ervin v. Cannon Mills Co., 233 N.C. 415, 64 S.E.2d 431;Hoke v. Atlantic Greyhound Corp., 226 N.C. 692, 40 S.E.2d 345.When more than one legitimate inference can be drawn from the evidence, the question of proximate cause is to be determined by the jury.Lincoln v. Atlantic Coast Line R. R., 207 N.C. 787, 178 S.E. 601.'It is only when the facts are all admitted and only one inference may be drawn from them that the court will declare whether an act was the proximate cause of an injury or not.But that is rarely the case. 'Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 29 S.E.2d 740.

It would seem that the trial judge in giving the challenged part of the charge quoted above followed Spence v. Rasmussen, 190 Or. 662, 226 P.2d 819.This was an action to recover damages for death of a bicyclist when an overtaking truck collided with his bicycle.The collision occurred 26 January 1948 about the hour of 6:10 a. m. in Jackson County, Oregon, on U. S. Highway 99.The sun rose at 7:20 a. m. that day.The weather was clear and the pavement was dry.There was evidence the bicycle was equipped with an ordinary bicycle front lamp (electric) and with a red reflector on the rear, but that the front lamp on the bicycle was not burning.Section 115-368, O.C.L.A., as amended by ch. 16,Oregon Laws 1947, provided: '(b) * * * Every bicycle shall be equipped with a lamp on the front exhibiting a white light visible from a distance of at least 500 feet to the front of such bicycle, and with a red reflector on the rear, and of such size or characteristics and so mounted as to be visible at night from all distances within 300 feet to 50 feet from the rear of such bicycle.A red light visible from a distance of 500 feet to the rear may be used in addition to the rear reflector. 'The Court said:

'This provision respecting a front lamp on a bicycle is designed for the benefit of those approaching a bicycle from the front and for the protection of the bicyclist from such.It in no way requires a light of such intensity as to render objects visible along the highway in front of the bicycle.The red reflector is designed to protect the bicyclist from vehicles approaching from the rear and to give notice to such vehicles of the presence of the bicycle ahead.The installation of a red light on the rear of a bicycle is permissive and not mandatory.The statute contemplates that the red reflector on the rear of the bicycle will show up in the rays of light from the front lamps on the motor vehicle approaching from the rear in time to prevent mishap.

'The requirements of the statute respecting front lamps on motor vehicles have entirely different purposes than the statute respecting bicycle lamps.The front lights on motor vehicles are designed to render visible not only the road ahead and each side thereof, but also persons and objects thereon in the path of the vehicle.

'There...