Spencer v. McDowell Motor Co.

• Decision Date: 08 October 1952
• Docket Number: No. 26,26
• Citation: 236 N.C. 239,72 S.E.2d 598
• Parties: SPENCER, v. McDOWELL MOTOR CO., Inc., et al.
• Court: North Carolina Supreme Court

Page 598

72 S.E.2d 598

236 N.C. 239

SPENCER, v. McDOWELL MOTOR CO., Inc., et al.

No. 26

Supreme Court of North Carolina.

Oct. 8, 1952

Wilson & Wilson, Elizabeth City, for plaintiff appellee.

John H. Hall, Elizabeth City, for defendant Motor Co., appellant.

W. C. Morse, Jr., Elizabeth City, for defendant Ives, appellant.

WINBORNE, Justice.

I. The appellant Motor Company assigns as error, among others, portions of the charge as given by the court in respect to the third issue, that is, the issue as to contributory negligence of plaintiff (assignments of error numbers 9 and 10 based on its exceptions 24 and 26), and to the failure of the court to declare, explain and apply the law arising on the evidence on the third issue, particularly as it concerns or is addressed to the statute requiring pedestrians to walk on the extreme left-hand side of the highway and yield the right of way to approaching traffic, as provided for in G.S. § 20-174(a). (Assignment of error number 13 based on exception 29.) And the appellant Ives also assigns as error the same portions of the charge as so given. (Assignments 3 and 4 based on his exceptions 12 and 13.) These exceptions are well taken.

In this connection it is appropriate to turn to an act passed by the General Assembly, Public Laws 1937, Chap. 407, Article XI, now Part 11 of Chap. 20 of General Statutes, pertaining to rights and duties of pedestrians in respect to streets and highways in this State.

In Sec. 133 of the above Act, now G.S. § 20-172, it is declared that 'Pedestrians shall be subject to traffic control signals at intersections as heretofore declared in this article, but at all other places pedestrians shall be accorded the privileges and shall be subject to the restrictions stated in part eleven of this article. ' Then, after defining in Sec. 134, now G.S. § 20-173, pedestrians' right of way at crosswalks, it is further declared in Sec. 135, now G.S. § 20-174, that '(a) Every pedestrian crossing a roadway at any point other than within a marked cross-walk or within an unmarked cross-walk at an intersection shall yield the right-of-way to all vehicles upon the roadway', and that '(d) It shall be unlawful for pedestrians to walk along the traveled portion of any highway except on the extreme left-hand side thereof, and such pedestrians shall yield the right-of-way to approaching traffic.'

The trial court after reading to the jury only the provisions of subsection (a) of Sec. 135, now G.S. § 20-174(a) above quoted, charged as follows: 'I instruct you in that respect, gentlemen, that the provisions of that statute do not require a pedestrian on the highway to yield the right of way; the duty is imposed upon him under the terms of that statute to yield the right of way to traffic approaching from the front as they are going down the left side of the highway. ' This is the portion to which exception 24 relates.

In this connection there is evidence in the record from which it may be inferred that plaintiff was walking north along the highway on her right-hand side. Defendant Ives testified that when he first saw plaintiff she was facing more towards Elizabeth City than she was in the direction from which he was coming. And plaintiff herself testified: 'I crossed the highway to the east shoulder; I turned and was walking left facing traffic, going south.'

True, plaintiff also testified, 'I just saw it (the convertible) coming facing me from the direction of Weeksville, towards Elizabeth City. ' This testimony is susceptible of the inference, as plaintiff contends, that she was walking south on her left-hand side of the highway.

Thus it was incumbent upon the trial court to give appropriate instruction in the light of both inferences--that is, (1) the inference that plaintiff was walking on her left-hand side of the highway, and (2) the inference that she walking on her right-hand side of the highway, as the jury may find the facts to be.

If she were walking on her left-hand side the statute says she'shall yield the right-of-way to approaching traffic '. Hence we are constrained to hold that the portion of the charge to which exception is here taken reads into the statute more than it contains, and is calculated to mislead and confuse the jury.

On the other hand, if plaintiff were walking north on her right-hand side of the highway, this was in violation of the statute, G.S. § 20-174(d), and would be evidence of negligence to be considered in connection with surrounding circumstances as to whether she used reasonable care and caution commensurate with visible conditions. See Miller v. Lewis & Holmes Motor Freight Corp., 218 N.C. 464, 11 S.E.2d 300; Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246; also Templeton v. Kelley, 215 N.C. 577, 2 S.E.2d 696; Id., 216 N.C. 487, 5 S.E.2d 555.

As to Motor Company's Assignment of Error No. 10: The court, after charging on the burden of proof as to the third issue, stated the contentions of the plaintiff, and of the defendants as to how the issue should be answered in keeping with their respective contentions. Then the court instructed the jury: 'If * * * you find by the greater weight of the evidence that at the time and place in question Mrs. Spencer, the plaintiff in this action, failed to exercise that degree of care a person of ordinary prudence would exercise in the position she occupied on the shoulder of the road as the car was approaching her and passed her and that by reason of the position in which she assumed or placed herself she caused the car to collide with and inflicting the injuries sustained about which she complains, or that was the proximate cause, it would be your duty to answer that issue Yes; or if you find by the greater weight and when I say 'proximate cause' I mean contributing as a proximate cause or one of the proximate causes of the collision and injury, or (U) if you find by the greater weight of the evidence that at the time and place in question the plaintiff Mrs. Spencer was walking on the right side of the highway in the direction in which she was going, and that in so doing she was acting in violation of the statute which I read to you, and that she was in plain view of the defendant Ives operating the automobile, or where with the exercise of reasonable care, she could have been seen or should have been seen; and that Ives negligently and carelessly failed to exercise that degree of care a person of ordinary prudence would exercise or due care to prevent the automobile from colliding with her, and that such negligence on his part resulted in and proximately caused the collision and injury, it would be your duty to answer that issue No, unless you so find you would answer it Yes. (V).'

The portion between letters U-V is subject of Exception 26.

In respect to this charge, the conduct of the defendant Ives is not the...