Whitley v. Owens

Decision Date16 June 1987
Docket NumberNo. 8622SC1344,8622SC1344
Citation86 N.C.App. 180,356 S.E.2d 815
PartiesClyde William WHITLEY, Jr. v. Larry Michael OWENS.
CourtNorth Carolina Court of Appeals

Hall & Vogler by William E. Hall, Mocksville, for plaintiff-appellant.

Womble, Carlyle, Sandridge & Rice by Allan R. Gitter, Winston-Salem, for defendant-appellee.

BECTON, Judge.

Clyde William Whitley, Jr., driver of a garbage truck, brought this action seeking to recover damages for personal injuries he sustained when he was struck by a van driven by defendant, Larry Michael Owens. At the time of the accident, Whitley was walking alongside the garbage truck during a regular stop on his garbage pick-up route. In his Answer, Owens denied that he was negligent and alleged that plaintiff's own negligence contributed to the injuries. The case was tried before a jury which found that both parties were negligent and thus denied recovery to plaintiff. From judgment entered 25 August 1986 in accordance with the verdict, plaintiff appeals. We find no error.

On appeal, plaintiff assigns as error the trial judge's (1) failure to give a limiting instruction after sustaining objections to opinion testimony of defendant's witness, Nadine Howell, (2) admission of hearsay testimony of defendant's wife as corroborative of defendant's testimony, and (3) denial of plaintiff's motions for directed verdict at the close of all the evidence, for judgment notwithstanding the verdict, and for a new trial on the issue of contributory negligence.

I

The accident occurred on U.S. Highway 158 in Davie County at approximately 8:15 a.m. on 18 December 1984. The plaintiff's evidence tended to show the following facts. Whitley, and his co-worker, Kenneth Head, who rode in the passenger side of the garbage truck, stopped at a certain spot along their regular route heading in an easterly direction. They were unable to pull the truck completely off the road but parked on the right side at an angle so that the rear left corner overhung the pavement approximately two feet, and turned on the truck's hazard flashers.

The two men alighted, walked to the back of the truck, and emptied the trash cans which were a few feet away. They then looked for traffic, but neither remembered seeing a vehicle approaching although visibility was good and they could see approximately a quarter of a mile. Each began to walk from the back of the truck to his respective door (a distance of ten to twelve feet), Head along the passenger (right) side and Whitley along the driver's (left) side. Whitley was nearly abreast of the driver's door and about to reach for the handle when he looked back and became aware of Owens' vehicle coming toward the truck. He attempted to jump into the space between the bed and cab of the truck, but the van skidded into him, crushing him between the vehicles and seriously injuring his leg. The van continued travelling for a distance and then stopped.

The defendant's evidence tended to show the following. Owens turned onto Highway 158 in the middle of a curve approximately one half to three quarters of a mile from the accident site and headed in an easterly direction. He followed the road uphill and around the curve (approximately one fourth of the total distance). From that point, the road was straight and downhill to where the garbage truck was parked.

Owens first saw the truck as he was about halfway down the hill and recognized it as a garbage truck, but he did not recall seeing any lights flashing and did not see anyone around the truck. He was "right on top" of the truck when he first saw Whitley coming from the front of the truck toward the back, walking out in the road. At that time, Owens' van was travelling between 45 and 50 m.p.h. Because of the angle at which the truck was parked, Owens could not see around the left side toward the front until he was right up to it. When he saw Whitley, he slammed on the brakes, the rear wheels locked, and the rear end of the van slid to the right, striking the garbage truck and its driver. Owens then pulled ahead a short distance to the fire station across the road and walked back to where the accident occurred.

II

Whitley contends that the evidence of contributory negligence was insufficient to take that issue to the jury and that the trial court thus erred in denying his motions for directed verdict, for judgment notwithstanding the verdict, and for a new trial. We disagree.

On a motion for a directed verdict, the court must view the evidence in the light most favorable to the nonmovant, resolving all conflicts in his favor, and giving him the benefit of every inference that could reasonably be drawn from the evidence in his favor. West v. Slick, 313 N.C. 33, 326 S.E.2d 601 (1985). The same standard of sufficiency of the evidence applies to a motion for judgment notwithstanding the verdict. Northern National Life Insurance Co. v. Lacy J. Miller Machine Co., 311 N.C. 62, 316 S.E.2d 256 (1984).

A pedestrian crossing the road at any point other than a marked crosswalk, or walking along or upon a highway, has a statutory duty to yield the right of way to all vehicles on the roadway. See N.C.Gen.Stat. Sec. 20-174 (1983); Garmon v. Thomas, 241 N.C. 412, 85 S.E.2d 589 (1955). Such a pedestrian also has a common law duty to exercise reasonable care for his own safety by keeping a proper lookout for approaching traffic before entering the road and while on the roadway. See, e.g., Blake v. Mallard, 262 N.C. 62, 136 S.E.2d 214 (1964); Rosser v. Smith, 260 N.C. 647, 133 S.E.2d 499 (1963); Brooks v. Boucher, 22 N.C.App. 676, 207 S.E.2d 282, cert. denied, 286 N.C. 211, 209 S.E.2d 319 (1974). Failure to yield the right of way to traffic pursuant to G.S. Sec. 20-174 does not constitute negligence per se but is some evidence of negligence. E.g., Clark v. Bodycombe, 289 N.C. 246, 221 S.E.2d 506 (1976); Blake; Troy v. Todd, 68 N.C.App. 68, 313 S.E.2d 896 (1984).

In Kellogg v. Thomas, 244 N.C. 722, 94 S.E.2d 903 (1956), our Supreme Court outlined the standard of care applicable to highway workers whose duties of employment require their presence on a street or highway. Such a person working in an area marked by warning signs occupies a different status from an ordinary pedestrian crossing a street and is not required to keep a constant lookout for traffic while working. This fact must be considered in determining the degree of care he must exercise for his own safety and in deciding whether he is contributorily negligent. However,

[t]he sound general rule that a workman laboring at his job on a highway is not required to exercise the same degree of care for his own safety required of an ordinary pedestrian does not apply where the...

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5 cases
  • Womack v. Stephens
    • United States
    • North Carolina Court of Appeals
    • June 5, 2001
    ...safety by keeping a proper lookout for approaching traffic before entering the road and while on the roadway.' Whitley v. Owens, 86 N.C.App. 180, 182, 356 S.E.2d 815, 817 (1987). Further, N.C. Gen.Stat. § 20-174(a) (1989) provides that a pedestrian `crossing a roadway at any point other tha......
  • Hofecker v. Casperson
    • United States
    • North Carolina Court of Appeals
    • February 1, 2005
    ...along or upon a highway, has a statutory duty to yield the right of way to all vehicles on the roadway." Whitley v. Owens, 86 N.C.App. 180, 182, 356 S.E.2d 815, 817 (1987). Furthermore, "[s]uch a pedestrian also has a common law duty to exercise reasonable care for his own safety by keeping......
  • Wolfe v. Burke, 9015SC226
    • United States
    • North Carolina Court of Appeals
    • December 18, 1990
    ...safety by keeping a proper lookout for approaching traffic before entering the road and while on the roadway." Whitley v. Owens, 86 N.C.App. 180, 182, 356 S.E.2d 815, 817 (1987). Further, N.C.Gen.Stat. § 20-174(a) (1989) provides that a pedestrian "crossing a roadway at any point other than......
  • Hartwell v. Mahan
    • United States
    • North Carolina Court of Appeals
    • November 5, 2002
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