Morris v. Minix

167 S.E.2d 494 (1969)

4 N.C. App. 634

Ruby C. MORRIS, Administratrix of the Estate of David Claude Cannon, Deceased v. Archie Lee MINIX, Harold Wesley Mason, King Brothers Farm Center, Inc., and Elmer Grey Dudley.

No. 693SC73.

Court of Appeals of North Carolina.

May 28, 1969.

Everett & Cheatham, by James T. Cheatham and C. W. Everett, Jr., Greenville, for plaintiff appellant.

Gaylord & Singleton, by L. W. Gaylord, Jr., Greenville, for defendants appellees Minix and Mason.

BRITT, Judge.

The sole question presented is whether the superior court committed error in allowing the motions for nonsuit as to defendants Minix and Mason. This question requires a determination of the sufficiency of the evidence, considering the evidence in the light most favorable to the plaintiff, resolving contradictions in the evidence in her favor, and giving her the benefit of all reasonable inferences.

Statement of the principles governing this case is not difficult; however, application of these principles to the facts is extremely difficult, perhaps because of the lack of clarity in the facts.

The key statute is G.S. § 20-174. Subsection (a) of that statute provides: "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." Subsection (e) provides: "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, and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway."

In Price v. Miller, 271 N.C. 690, 157 S.E.2d 347, the Supreme Court quoted the following from Williams v. Henderson, 230 N.C. 707, 55 S.E.2d 462:

"`A motorist operates his vehicle on the public highways where others are apt to be. His rights are relative. Should he lapse into a state of carelessness or forgetfulness his machine may leave death and destruction in its wake. Therefore, the law imposes upon him certain positive duties and exacts of him constant care and attention. He must at all times operate his vehicle with due caution and circumspection, with due regard for the rights and safety of others, and at such speed and in such manner as will not endanger or be likely to endanger the *497 lives or property of others. G.S. § 20-140; * * *'

`He must operate his vehicle at a reasonable rate of speed, keep a lookout for persons on or near the highway, Cox v. Lee, 230 N.C. 155, 52 S.E.2d 355, decrease his speed when any special hazard exists with respect to pedestrians, G.S. § 20-141(c), and if circumstances warrant, he must give warning of his approach by sounding his horn. G.S. § 20-174(e); * * *'"

In the case at hand, the evidence favorable to the plaintiff indicates that Cannon had stepped back into defendant Mason's path in order to allow defendant Dudley to pass. The road may have been as narrow as eighteen feet, in which case a prudent man would be justified in stepping back beyond the center line to allow a large truck to pass, especially if unaware of any traffic in the other lane. Of necessity, the truck would not have attained great speed in the distance from the grill to the place where Cannon was standing. Since the jury could find that Cannon had stood in the northern lane the entire time while defendant Dudley approached and passed him, the jury would be reasonable in concluding that defendant Mason had ample opportunity to observe Cannon and to take evasive action. Defendant Mason had an adequate "escape route" via the northern shoulder of the road, while Cannon had none. Moreover, none of the witnesses heard a horn and no skid marks were found. The evidence favorable to the plaintiff presents a question for the jury on the negligence of defendant Mason. The parties stipulated that any negligence on the part of Mason is imputed to defendant Minix.

The evidence favorable to plaintiff does not disclose contributory negligence so clearly as to render any other reasonable conclusion impossible. Cannon may have been entirely reasonable in stepping back, depending partially on the width of the road and truck and on the location of the truck in relation to Cannon. The jury should decide the issue.

For the reasons stated, we hold that the trial court erred in entering judgment of involuntary nonsuit and dismissing the action as to defendants Minix and Mason, necessitating a

New trial.

CAMPBELL and MORRIS, JJ., concur.