Wolfe v. Burke, 9015SC226

• Decision Date: 18 December 1990
• Docket Number: No. 9015SC226,9015SC226
• Citation: 398 S.E.2d 913,101 N.C.App. 181
• Court: North Carolina Court of Appeals
• Parties: John Dewitt WOLFE, Plaintiff, v. John Carl BURKE, Defendant.

Page 913

398 S.E.2d 913

101 N.C.App. 181

John Dewitt WOLFE, Plaintiff, v.John Carl BURKE, Defendant.

No. 9015SC226.

Court of Appeals of North Carolina.

Dec. 18, 1990.

Hutchins, Tyndall, Doughton & Moore by Laurie L. Hutchins, Winston-Salem, for plaintiff-appellant.

Walter L. Horton, Jr., Raleigh, for defendant-appellee.

ORR, Judge.

The issue on appeal is whether the trial court erred in granting defendant's motion for directed verdict on the grounds that 1) there was insufficient evidence regarding the issue of defendant's negligence which was a proximate cause of plaintiff's injury to go to the jury, and 2) the evidence disclosed that the plaintiff was contributorially negligent as a matter of law.For the reasons set forth below, we conclude that the trial court erred in granting defendant's motion for a directed verdict.

In determining a motion for a directed verdict pursuant to N.C.Gen.Stat. § 1A-1,Rule 50(1990), the trial court must "consider all the evidence in the light most favorable to the nonmoving party.A directed verdict may be granted only if, as a matter of law, the evidence is insufficient to justify a verdict for the nonmovant."Watkins v. Hellings, 321 N.C. 78, 81, 361 S.E.2d 568, 570(1987).

Plaintiff argues that the evidence was sufficient to go to the jury on the issues of defendant's and plaintiff's negligence."[S]ince negligence usually involves issues of due care and reasonableness of actions under the circumstances, it is especially appropriate for determination by the jury."Radford v. Norris, 74 N.C.App. 87, 88-89, 327 S.E.2d 620, 621-22, disc. review denied, 314 N.C. 117, 332 S.E.2d 483(1985).

In North Carolina, a pedestrian 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."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 within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway."

In addition to a motorist's common law duty " 'to exercise due care to avoid colliding with' a pedestrian,"Gamble v. Sears, 252 N.C. 706, 710, 114 S.E.2d 677, 679(1960)(quotingLandini v. Steelman, 243 N.C. 146, 148, 90 S.E.2d 377, 379(1955)), N.C. Gen.Stat. § 20-174(e)(1989) provides that "[n]otwithstanding 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...."

Under G.S. 20-174(e), a motorist has the duty ... to operate his vehicle at a reasonable rate of speed, keep a lookout for persons on or near the highway, decrease his speed when special hazards exist with respect to pedestrians, and give warning of his approach by sounding his horn if the circumstances warrant.

State v. Fearing, 48 N.C.App. 329, 336, 269 S.E.2d 245, 249, cert. denied, 301 N.C. 99, 273 S.E.2d 303, disc. review denied, 301 N.C. 403, 273 S.E.2d 448(1980), aff'd in part and new trial granted in part on other grounds, 304 N.C. 471, 284 S.E.2d 487(1981).

In the instant case, there was evidence the collision occurred on the straight strip of road, and there were no obstructions for 60 to 70 yards from the top of the hill where the road curves to the bottom of the straight strip of road.Defendant did not see plaintiff prior to impact though his father saw plaintiff at impact.Further, the evidence tends to show that defendant's headlights were burning, and plaintiff was wearing dark clothing.The evidence was conflicting regarding the point of impact, the amount of lighting at the scene, and whether defendant was speeding.Thus, we conclude that there was sufficient evidence below to reach the jury on the issue of whether defendant failed to keep a proper lookout and was negligent.

Regarding the issue of plaintiff's contributory negligence, the evidence shows that plaintiff was not crossing at a crosswalk and therefore had a duty to yield under § 20-174(a).However, our courts have held that the "failure to yield the right-of-way [as required under N.C.Gen.Stat. § 20-174(a) ] is not contributory negligence per se, but rather that it is only evidence of negligence to be considered with other evidence in the case in determining whether the plaintiff is chargeable with negligence which proximately caused or contributed to his injury."Dendy v. Watkins, 288 N.C. 447, 456, 219 S.E.2d 214, 220(1975).

Even though failing to yield the right-of-way to an automobile is not contributory negligence per se, it may be contributory negligence as a matter of law.Meadows v. Lawrence, 75 N.C.App. 86, 330 S.E.2d 47(1985)."[T]he court will nonsuit ... 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."Ragland v. Moore, 299 N.C. 360, 364, 261 S.E.2d 666, 668(1980)(quotingBlake v. Mallard, 262 N.C. 62, 65, 136 S.E.2d 214, 216(1964))."A rule which by definition requires contributory negligence to be so clear 'that no other reasonable inference may be drawn therefrom' will by its nature be satisfied only infrequently and only in extreme circumstances."Wagoner v. Butcher, 6 N.C.App. 221, 231-32, 170 S.E.2d 151,...