Ragland v. Moore

• Decision Date: 01 February 1980
• Docket Number: No. 122,122
• Citation: 261 S.E.2d 666,299 N.C. 360
• Court: North Carolina Supreme Court
• Parties: Aurelia Jane RAGLAND v. Michael George MOORE and Cleve George MOORE.

Page 666

261 S.E.2d 666

299 N.C. 360

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

No. 122.

Supreme Court of North Carolina.

Feb. 1, 1980.

Newsom, Graham, Hedrick, Murray, Bryson & Kennon by O. William Faison and William P. Daniell, Durham, for defendantappellants.

Fellers & Link by Carlton E. Fellers, and Ricks & Ricks by Walter E. Ricks, III, Raleigh, for plaintiffappellee.

BRANCH, Chief Justice.

The sole question presented by this appeal is whether the Court of Appeals erred in reversing the trial court's determination that defendants were entitled to summary judgment on the basis of plaintiff's contributory negligence.Defendants contend that plaintiff failed to maintain a constant lookout for oncoming traffic and that this failure constituted contributory negligence as a matter of law.

In ruling on a motion for summary judgment, the court does not resolve issues of fact and must deny the motion if there is a genuine issue as to any material fact.Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400(1972).The movant always has the burden of showing that there is no triable issue of fact and that he is entitled to judgment as a matter of law.Pitts v. Pizza, Inc., 296 N.C. 81, 249 S.E.2d 375(1978).In considering the motion, the trial judge holds the movant to a strict standard, and "all inferences of fact from the proofs proffered at the hearing must be drawn against the movant and in favor of the party opposing the motion."Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381(1975).Moreover, it is only in exceptional negligence cases that summary judgment is appropriate, since the standard of reasonable care should ordinarily be applied by the jury under appropriate instructions from the court.Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189(1972).

In the instant case, plaintiff when struck by defendants' car was crossing the highway at a point where there was neither a crosswalk nor an intersection.In passing upon defendants' motion for summary judgment, the evidence must be tested by the rule of the reasonably prudent man, in the light of the duties imposed upon both plaintiff and defendant by the following provisions of G.S. 20-174:

(a) Every 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. . . .

(e) Notwithstanding the provisions of this section, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, and shall give warning by sounding the horn when necessary . . . .

This Court has dealt with a defense of contributory negligence based upon a plaintiff's violation of G.S. 20-174(a) in many cases.In Blake v. Mallard, 262 N.C. 62, 136 S.E.2d 214(1964), Justice Sharp (later Chief Justice), writing for the Court, stated the applicable law:

The failure of a pedestrian crossing a roadway at a point other than a crosswalk to yield the right of way to a motor vehicle is not contributory negligence Per se ; it is only evidence of negligence.(Citation omitted.)However, the 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.(Citations omitted.)

Id. at 65, 136 S.E.2d at 216.Although that case involved a motion for nonsuit rather than one for summary judgment as in the instant case, this Court has repeatedly held that "(t)hemotion for summary judgment and the motion for a directed verdict, formerly nonsuit, are functionally very similar."Williams v. Power & Light Co., 296 N.C. 400, 404, 250 S.E.2d 255, 258(1979);Dendy v. Watkins, 288 N.C. 447, 219 S.E.2d 214(1975).

In Blake v. Mallard, supra, relied upon by defendant, a woman pedestrian was struck by the defendant's automobile while crossing a straight, six-lane highway at night.One of the plaintiff's witnesses testified that when the plaintiff started "walking normally" across the road, the defendant was about two hundred yards to the plaintiff's right and was approaching at a speed of sixty miles per hour.The plaintiff continued into the car's path and first observed it when she entered its lane of travel, at which time it was only forty-five feet away.At this point, the defendant could not have avoided hitting the plaintiff even if he had not been speeding.In affirming the judgment as of nonsuit against the plaintiffthis Court cited its language in Garmon v. Thomas, 241 N.C. 412, 85 S.E.2d 589(1955):

Conceding, however, that the defendant should have seen the plaintiff and given him warning of his approach, the plaintiff was at all times under the duty to see the defendant and to yield the right of way to him.In our opinion, both parties were negligent.The defendant was negligent in failing to exercise due care to avoid colliding with the plaintiff on the highway, * * * and the plaintiff was negligent in failing to exercise reasonable care for his own safety in that he failed to keep a timely lookout to see what he should have seen and could have seen if he had looked.

262 N.C. at 66, 136 S.E.2d at 217.

Similarly, this Court held that judgment as of nonsuit should have been granted in Anderson v. Carter, 272 N.C. 426, 158 S.E.2d 607(1968).In that casethe plaintiff attempted to cross a street at a point not within a crosswalk at night.Before starting to cross the street, the plaintiff saw the lights of the defendant's car at the crest of the hill 275 to 300 feet away, headed south, but underestimated its speed.The Court held that under these circumstances, it was not contributory negligence as a matter of law for him to start walking across the northbound lane.The plaintiff continued to watch the approaching car and determined that the car was traveling at least fifteen miles per hour over the speed limit.Nonetheless, he continued to walk at the same pace until he was struck within three feet of the opposite side of the street.This Court held that the evidence clearly showed that the plaintiff, a young man with no mental or physical disability, "could have avoided the collision, either by coming to a stop and yielding the right of way before entering the southbound lane of Statesville Avenue, or by accelerating his pace across it."Id. at 432, 158 S.E.2d at 611.Since the plaintiff in Anderson did neither of these, his failure to do so was negligence and a proximate cause of his injuries.

On the other hand, a number of decisions by this Court have held that nonsuit was improperly entered on the basis of the plaintiff-pedestrian's failure to yield the right of way to passing vehicles.In Landini v. Steelman, 243 N.C. 146, 90 S.E.2d 377(1955), the plaintiff and her friend alighted from a bus on a dark night, walked around in front of the parked bus, looked in either direction and, seeing no oncoming cars, started walking across the street.When about two-thirds of the way across, the two ladies observed the approaching lights of the defendant's car.Both attempted to get out of its way by increasing their pace but were struck almost immediately by the defendant's car.Because of a hill, the defendant would have been visible to them from about 250 or 300 yards away.There was also evidence that the defendant was speeding.This Court held that the evidence was susceptible to diverse inferences on the issues of the defendant's negligence and the plaintiff's contributory negligence, and thus the case should have been submitted to the jury.See alsoBank v. Phillips, 236 N.C. 470, 73 S.E.2d 323(1952).

A similar result was reached in Goodson v. Williams, 237 N.C. 291, 74 S.E.2d 762(1953), which involved a defendant who dimmed his lights in meeting an oncoming car on the highway at night.The moment he started to brighten his lights, plaintiff's intestate "darted in front of him, he applied the brakes and swerved the car to the center lane but was too near to avoid striking the (deceased)."Other testimony, however, indicated that the defendant swerved to the right and consequently hit the deceased, who was almost off the pavement.In holding that the defendant's motion for judgment as of nonsuit should have been overruled, this Court stated that one is not "presumed to be guilty of contributory negligence as a matter of law because he failed to yield the right of way to a vehicle on a highway...