Ragland v. Moore, 789SC714

• Decision Date: 05 June 1979
• Docket Number: No. 789SC714,789SC714
• Citation: 255 S.E.2d 222,41 N.C.App. 588
• Parties: Aurelia Jane RAGLAND v. Michael George MOORE and Cleve George Moore.
• Court: North Carolina Court of Appeals

Page 222

255 S.E.2d 222

41 N.C.App. 588

Aurelia Jane RAGLAND v. Michael George MOORE and Cleve George Moore.

No. 789SC714.

Court of Appeals of North Carolina.

June 5, 1979.

Fellers & Link by Carlton E. Fellers, Raleigh, for plaintiff-appellant.

Newsome, Graham, Strayhorn, Hedrick, Murray, Bryson & Kennon by O. William Faison, Durham, for defendants-appellees.

WEBB, Judge.

The appellate courts of this state have passed on summary judgments on numerous occasions. See Haithcock v. Chimney Rock Co., 10 N.C.App. 696, 179 S.E.2d 865 (1971); Goode v. Tait, Inc., 36 N.C.App. 268, 243 S.E.2d 404, Discretionary review denied, 295 N.C. 465, 246 S.E.2d 215 (1978), and Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979). In Moore v. Fieldcrest Mills, Inc., supra, the Supreme Court stated the rule in terms of a forecast of evidence. This case states the rule to be that if the moving party presents papers which forecast such evidence as would require a directed verdict for the movant at trial, the party opposing the motion must file papers which forecast evidence which would prevent a directed verdict at trial. If the opposing party fails to do this, the movant is entitled to summary judgment in his favor. This test is substantially the same as the one delineated in Haithcock v. Chimney Rock Co., supra, and it effectively overrules Goode v. Tait, Inc., supra. The question raised by this appeal is whether on the evidence as forecast in this case, the defendant would be entitled to a directed verdict if this evidence were offered at trial. We hold that on the evidence as forecast the defendant would not be entitled to a directed verdict and summary judgment was improperly entered.

There have been many appellate cases involving pedestrians who were struck by vehicles while crossing a roadway. It is the duty of a pedestrian crossing a roadway at a point other than a crosswalk to yield the right of way to a motor vehicle. A failure to do so is contributory negligence. If the only inference that can be drawn from the evidence is that this contributory negligence is a proximate cause of the accident, a pedestrian cannot recover. See Foster v. Shearin, 28 N.C.App. 51, 220 S.E.2d 179 (1975). Before reaching the question of contributory negligence, in the case sub judice we note that there was evidence of negligence on the part of the defendant Michael George Moore. The plaintiff testified that in her opinion he was speeding. This is enough evidence to make it a jury question as to whether the speed of defendant Michael George Moore was a proximate cause of the accident. Landini v. Steelman, 243 N.C. 146, 90 S.E.2d 377 (1955). As to whether the plaintiff's failure to yield the right of way must be held contributory negligence as a matter of law, we believe the cases hold that if a pedestrian steps into a roadway in such a manner that the only reasonable inference the jury can make is that the accident is unavoidable regardless of the vehicle driver's negligence the pedestrian cannot recover. See Foster v. Shearin, supra; Blake v. Mallard, 262 N.C. 62, 136 S.E.2d 214 (1964); Price v. Miller, 271 N.C. 690, 157 S.E.2d 347 (1967); Holland v. Malpass, 255 N.C. 395, 121 S.E.2d 576 (1961); Garmon v. Thomas, 241 N.C. 412, 85 S.E.2d 589 (1955); Brooks v. Smith, 27 N.C.App. 223, 218 S.E.2d 489 (1975), and Downs v. Watson, 8 N.C.App. 13, 173 S.E.2d 556 (1970). If a pedestrian enters a roadway at a position at which the jury could reasonably find the accident is unavoidable, it is a jury question as to whether the negligence of the pedestrian is a proximate cause of the accident. Landini v. Steelman, supra; Goodson v. Williams, 237 N.C. 291, 74 S.E.2d 762 (1953), and Citizens National Bank v. Phillips, 236 N.C. 470, 73 S.E.2d 323 (1952). In Anderson v. Carter, 272 N.C. 426, 158 S.E.2d 607 (1968), the Court held that a directed verdict should have been allowed in defendant's favor not because the plaintiff stepped into the path of an oncoming automobile, but because he did not make a sufficient effort to avoid the accident when he determined...