Womack v. Stephens

Decision Date05 June 2001
Docket NumberNo. COA00-661.,COA00-661.
Citation144 NC App. 57,550 S.E.2d 18
CourtNorth Carolina Court of Appeals
PartiesCarolyn Laverne WOMACK, Plaintiff-Appellant, v. Emma McManus STEPHENS, Defendant-Appellee.

Donaldson & Black, P.A., by Rachel Scott Decker, Greensboro, for plaintiff-appellant.

Frazier & Frazier, L.L.P., by Torin L. Fury, Greensboro, for defendant-appellee.

TYSON, Judge.

Carolyn Womack ("plaintiff") appeals the trial court's entry of a directed verdict in favor of Emma McManus Stephens ("defendant"). We reverse, and award plaintiff a new trial.

On 24 September 1995, plaintiff was injured when struck by defendant's vehicle as plaintiff attempted to cross by foot the 200-block of South English Street in Greensboro, North Carolina. The collision occurred at approximately 1:30 a.m. In this block, South English Street is a straight, four-lane road with two northbound lanes and two southbound lanes separated by a double yellow line. The posted speed limit is 35 miles per hour.

Witness, Eugene Siler ("Siler") was driving his vehicle in the outer, right-hand southbound lane of South English Street at approximately 1:30 a.m. Siler testified he was traveling at an approximate speed of 35-38 miles per hour. Defendant was driving her vehicle approximately two car-lengths behind Siler in the same lane.

At about this time, plaintiff attempted to cross the southbound lanes of South English Street. Plaintiff had crossed the two northbound lanes of the street without incident. Plaintiff did not cross South English Street in a marked pedestrian crossing or at an intersection. Plaintiff testified that she had lived near South English Street for several years, and that she knew there were crosswalks located a quarter of a mile north, and another located a quarter of a mile south from where she attempted to cross. There was one street light in the vicinity of where plaintiff attempted to cross, but no light directly where plaintiff entered the road. Siler testified that where plaintiff was crossing there was "only one street light, and it's not directly from where [plaintiff] was crossing. It's real dim, dark, from where [plaintiff] was trying to cross."

Plaintiff had crossed the center line of the two southbound lanes when Siler's car approached in the outer, right-hand southbound lane. Siler testified that at first, he did not see plaintiff, who was wearing a black coat and blue jeans. But as Siler approached plaintiff in the street, he "caught like a little flash of [plaintiff's] shirt." Siler testified that he began to brake immediately, and swerved to the right to avoid hitting plaintiff. Siler stated that as he swerved, he heard defendant hit her brakes. He further testified that, from his rear view mirror, he saw that "[defendant] didn't have time to swerve, and she started going in the opposite direction." Siler stated that it was only "moments after [he] hit [his] brakes and swerved" that "[defendant] started screeching her horn," but that "[defendant] hit her brakes ... probably about—about 10, 15 seconds later."

As Siler approached plaintiff in the right-hand lane, plaintiff backed up to the dividing line of the two southbound lanes. The investigating officer, B.S. Williamson ("Officer Williamson"), testified that the evidence showed defendant was traveling behind Siler. As Siler began to brake, defendant moved into the left-hand, inner southbound lane to avoid colliding with Siler. At the same time, plaintiff moved back toward the center of the southbound lanes, where the right-hand corner of defendant's car hit plaintiff. Siler testified that plaintiff never looked at him, but simply backed up to the dividing line of the two southbound lanes and into defendant's line of travel.

Defendant told Officer Williamson that she could not see plaintiff until she began to move into the left-hand lane. Defendant further stated that her brakes locked, and that she did not have enough time to avoid hitting plaintiff. Officer Williamson testified that the skid marks from defendant's car began in diagonal fashion near the center line, indicating that defendant braked just as she started to pass Siler in the left-hand lane. He further testified that the total length of the skid mark was 75 feet long, and 31.7 feet before impact, beginning in defendant's lane of travel and crossing over the center line. The front right hood of defendant's car was damaged.

Evidence was presented tending to establish that plaintiff had consumed alcohol during the day and evening leading up to the accident. Plaintiff testified that on the evening before the accident, 22 September 1995, she consumed a combination of marijuana, cocaine, and beer. Plaintiff testified that she slept that night, and resumed drinking beer when she awoke on 23 September 1995, the day leading up to the accident. Plaintiff consumed beer that day and evening, and she testified that she "was going to drink more beer with a friend" at the time of the accident.

Siler testified that after the collision, he approached plaintiff as she lay in the street. He testified that plaintiff was yelling and trying to stand, but that she could not stand because her leg was broken. He stated that plaintiff "had a real strong smell of alcohol on her breath."

At the close of plaintiff's evidence, defendant moved for a directed verdict. The trial court granted defendant's motion on 1 February 2000. Plaintiff appeals.

The sole issue on appeal is whether the trial court erred in directing a verdict in favor of defendant. We agree with defendant that the evidence establishes plaintiff's contributory negligence as a matter of law. However, we hold that the trial court erred in failing to submit the issue of last clear chance to the jury.

Our standard of review on the grant of a motion for directed verdict is "whether, upon examination of all the evidence in the light most favorable to the nonmoving party, and that party being given the benefit of every reasonable inference drawn therefrom, the evidence is sufficient to be submitted to the jury." Fulk v. Piedmont Music Center, 138 N.C.App. 425, 429, 531 S.E.2d 476, 479 (2000) (citing Abels v. Renfro Corp., 335 N.C. 209, 214-15, 436 S.E.2d 822, 825 (1993)). A directed verdict should be granted in favor of the moving party only where "`the evidence so clearly establishes the fact in issue that no reasonable inferences to the contrary can be drawn,' and `if the credibility of the movant's evidence is manifest as a matter of law.'" Law Offices of Mark C. Kirby, P.A. v. Industrial Contractors, Inc., 130 N.C.App. 119, 123, 501 S.E.2d 710, 713 (1998) (quoting Lassiter v. English, 126 N.C.App. 489, 493, 485 S.E.2d 840, 842-43,disc. review denied, 347 N.C. 137, 492 S.E.2d 22 (1997)).

I. Contributory Negligence

Plaintiff assigns error to the trial court's grant of defendant's motion for directed verdict on grounds that defendant did not establish plaintiff's contributory negligence as a matter of law. We disagree.

In Wolfe v. Burke, 101 N.C.App. 181, 398 S.E.2d 913 (1990), this Court outlined the common law and statutory duty of a pedestrian in crossing a road:

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.'

Id. at 185, 356 S.E.2d 815, 398 S.E.2d at 915. The Wolfe court noted that a plaintiff's failure to yield a right of way in violation of G.S. § 20-174(a) is not contributory negligence per se, but that such failure is "`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.'" Id. at 186, 398 S.E.2d at 916 (quoting 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." Id. at 186, 398 S.E.2d at 916 (citing Meadows v. Lawrence, 75 N.C.App. 86, 330 S.E.2d 47 (1985), affirmed, 315 N.C. 383, 337 S.E.2d 851 (1986)).

The trial court must direct a verdict for the defendant "when all the evidence so clearly establishes [plaintiff's] 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) (quoting Blake v. Mallard, 262 N.C. 62, 65, 136 S.E.2d 214, 216 (1964)); see also, e.g., Brooks v. Francis, 57 N.C.App. 556, 291 S.E.2d 889 (1982) (judgment as a matter of law proper where uncontroverted evidence shows that plaintiff's failure to use due care was at least one proximate causes of plaintiff's injuries.).

In Meadows, supra, this Court held that the plaintiff was contributorily negligent as a matter of law where the evidence showed that the plaintiff's negligence in crossing a highway was at least one proximate cause of the accident. Meadows, 75 N.C.App. at 90, 330 S.E.2d at 50. In that case, the evidence in the light most favorable to the plaintiff revealed the following: that plaintiff was standing in the defendant's highway lane of travel; that the defendant, with his vehicle headlights burning, turned onto the highway at a distance at least 100 feet from the plaintiff; that the road was straight and visibility unobstructed; and that just before impact the defendant's vehicle was traveling at about 43 miles per hour. Id.

This Court found significant that "between the time [defendant's] car turned onto the highway and the time of the...

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4 cases
  • Overton v. Purvis
    • United States
    • North Carolina Court of Appeals
    • 17 Diciembre 2002
    ...the pedestrian who did not apprehend imminent danger could not reasonably have been expected to avoid injury.'" Womack v. Stephens, 144 N.C.App. 57, 65, 550 S.E.2d 18, 23 (2001),disc. review denied, 354 N.C. 229, 555 S.E.2d 277 (2001)(quoting Nealy v. Green, 139 N.C.App. 500, 506, 534 S.E.2......
  • Redd v. Wilcohess, L.L.C.
    • United States
    • North Carolina Court of Appeals
    • 5 Marzo 2013
    ...jury when the elements of the doctrine are supported by substantial evidence is error and requires a new trial. Womack v. Stephens, 144 N.C.App. 57, 68, 550 S.E.2d 18, 25 (2001), disc. review denied,354 N.C. 229, 555 S.E.2d 277 (2001). On the specific facts of this case, we do not believe t......
  • Addison v. KYE
    • United States
    • North Carolina Court of Appeals
    • 20 Julio 2004
    ...through "the exercise of reasonable care, [defendant] could have discovered plaintiff's perilous position."'" Womack v. Stephens, 144 N.C. App. 57, 66, 550 S.E.2d 18, 24 (citations omitted), disc. review denied, 354 N.C. 229, 555 S.E.2d 27 (2001). Thus, the second element of last clear chan......
  • Womack v. Stephens, 355P01.
    • United States
    • North Carolina Supreme Court
    • 4 Octubre 2001
    ...Carolina. October 4, 2001. Torin L. Fury, Greensboro, for Stephens. Rachel Scott Decker, Greensboro, for Womack. Prior report: 144 N.C.App. 57, 550 S.E.2d 18. Upon consideration of the petition filed by Defendant in this matter for discretionary review of the decision of the North Carolina ......

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