Parker v. Windborne, 806SC328

Citation50 N.C.App. 410,273 S.E.2d 750
Decision Date20 January 1981
Docket NumberNo. 806SC328,806SC328
CourtCourt of Appeal of North Carolina (US)
PartiesWendell PARKER v. Gloria O. WINDBORNE and Walter Robert Windborne.

Thomas L. Jones, Murfreesboro, for plaintiff-appellant.

Gram & Baker by Ronald G. Baker, Ahoskie, for defendants-appellees.

WEBB, Judge.

At the outset, we note that the deposition of plaintiff forecasts sufficient evidence to be considered by the jury as to the negligence of the defendant Gloria O. Windborne. The fact that she drove the automobile into the plaintiff on the highway while the visibility was clear is some evidence that she did not keep a proper lookout or keep the vehicle under control and bring it to a halt so as to avoid a collision. This is evidence of negligence.

Since the materials submitted and considered by the court forecast at trial sufficient evidence of negligence by the defendant Gloria O. Windborne, we find the sole remaining issue on appeal is whether there was error in allowing summary judgment on the ground that plaintiff was contributorily negligent as a matter of law. There have been many cases dealing with the question of contributory negligence as a matter of law on the part of pedestrians crossing a street or highway who were struck by vehicles. See Ragland v. Moore, 299 N.C. 360, 261 S.E.2d 666 (1980); Price v. Miller, 271 N.C. 690, 157 S.E.2d 347 (1967); Blake v. Mallard, 262 N.C. 62, 136 S.E.2d 214 (1964); Holland v. Malpass, 255 N.C. 395, 121 S.E.2d 576 (1961); Landini v. Steelman, 243 N.C. 146, 90 S.E.2d 377 (1955); Garmon v. Thomas, 241 N.C. 412, 85 S.E.2d 589 (1955); Foster v. Shearin, 28 N.C.App. 51, 220 S.E.2d 179 (1975); Brooks v. Smith, 27 N.C.App. 223, 218 S.E.2d 489 (1975); Gentry v. Hackenberg, 23 N.C.App. 96, 208 S.E.2d 279 (1974); Downs v. Watson, 8 N.C.App. 13, 173 S.E.2d 556 (1970). The briefs cite no cases, and we have found none, which deal with the question of a pedestrian jogging on the highway who is struck by an automobile as he is moving to the other side of the highway. We believe the rule from the above cited cases is that even if all the evidence shows a pedestrian struck by a vehicle was contributorily negligent, summary judgment against the pedestrian is not proper unless all the evidence so clearly establishes the pedestrian's negligence as one of the proximate causes of the injury that no other reasonable conclusion is possible.

In the case sub judice, it appears from the plaintiff's deposition that he violated G.S. 20-174(d) in not jogging on the left-hand side of the road. He was negligent in so doing. The question then becomes whether from a forecast of the evidence the jury could only conclude that this negligence was a proximate cause of the injury. See Simpson v. Wood, 260 N.C. 157, 132 S.E.2d 369 (1963); Lewis v. Watson, 229 N.C. 20, 47 S.E.2d 484 (1948); Pope v. Deal, 39 N.C.App. 196, 249 S.E.2d 866, cert. denied, 296 N.C. 737, 254 S.E.2d 178 (1978).

The statute (G.S. 20-174(d)) requiring pedestrians to walk on the left-hand side of any highway is designed to protect the pedestrian, facing the opposite direction, from being struck by a vehicle approaching from the rear in the right-hand lane of travel. The plaintiff herein, jogging on the right-hand side of the highway, heard and then observed the defendant's vehicle approaching from the rear. The distance from the vehicle to plaintiff when it was first observed and the...

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3 cases
  • McCullough v. Amoco Oil Co.
    • United States
    • Court of Appeal of North Carolina (US)
    • 4 October 1983 nearby vehicles. This forecast of evidence is sufficient to preclude summary judgment on the negligence issue. In Parker v. Windborne, 50 N.C.App. 410, 273 S.E.2d 750, disc. rev. denied, 302 N.C. 398, 279 S.E.2d 352 (1981), we reversed the entry of a summary judgment noting that driving ......
  • Samuel v. Simmons
    • United States
    • Court of Appeal of North Carolina (US)
    • 20 January 1981
  • Parker v. Windborne
    • United States
    • United States State Supreme Court of North Carolina
    • 7 April 1981
    ...for defendants. Thomas L. Jones, Murfreesboro, for plaintiff. Petition by defendants for discretionary review under G.S. § 7A-31, 273 S.E.2d 750. ...

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