Templeton v. . Kelley

"WiNBORNE, J. Two questions arise for determination of this appeal: I. When taken in the light most favorable to plaintiff, is there sufficient evidence of negligence on the part of defendants to require the submission to the jury of an issue with respect thereto? 2. Upon all the evidence, is the plaintiff guilty of contributory negligence as a matter of law ? The first is answered in the affirmative, and the second in the negative. 1. In order to establish actionable negligence, “the plaintiff must show: First, that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed the plaintiff, under the circumstances in which they were placed; and, second, that such negligent breach of duty was the proximate cause of the injury — a cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such result was probable under all the facts as they existed.” Whitt v. Rand, 187 N. C., 805, 123 S. E., 84; Ramsbottom v. R. R., 138 N. C., 39, 50 S. E., 448. In connection with the application of this rule to the present case, it is appropriate to refer only to those pertinent sections of the Motor Yehicle Act, chapter 407, Public Laws 1937. Sec. 103 provides in part: “(a) No person shall drive a vehicle on a highway at a rate of speed greater than is reasonable and prudent under the conditions then existing. “(b) Where no special hazard exists the following speeds shall be lawful, but any speed in excess of said limits shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful: (1) Twenty miles per hour in any business district; . . . “(e) The foregoing provision of this section shall not be construed to relieve the plaintiff in any civil action from the burden of proving negligence upon the part of the defendant as the proximate cause of an accident.” *581 In tbe present case there is evidence that the occurrence, took place in a business district in the city of Charlotte, and at a time when the taxicab in question was being operated at a speed of twenty-five to thirty miles per hour. That speed, being in excess of twenty miles per hour— the limit prescribed for business districts, is “prima facie evidence that the speed is not reasonable or prudent and that it is unlawful.” But, as was said by Barnhill, J., in Woods v. Freeman, 213 N. C., 314, 195 S. E., 812, “It is not prima facie proof of proximate cause.” It is only evidence of negligence to be considered with other facts in the case in determining whether the defendants are guilty of actionable negligence. Sebastian v. Motor Lines, 213 N. C., 770, 197 S. E., 539. In subsection “c” of section 135 of said chapter 407, Public Laws 1937, with respect to “pedestrian’s rights and duties” it is further provided that: “Between adjacent intersections at which traffic control signals are in operation pedestrians shall not cross at any place except in a marked cross walk.” In subsection “e” of said section, however, it is provided that: “Notwithstanding the provisions of this section, every driver of 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.” Applying these principles to the evidence in the case in hand, when taken in the light most favorable to plaintiff, we are of opinion that there is sufficient evidence for submission to the jury of an issue of negligence under appropriate instruction. Woods v. Freeman, supra. 2. “The burden of showing contributory negligence is on the defendant, and motion for nonsuit may never be allowed on such an issue where the controlling and pertinent facts are in dispute, nor where opposing inferences are permissible from plaintiff’s proof,” Ilolce, J., in Battle v. Cleave, 179 N. C., 112, 101 S. E., 555; Ferguson v. Asheville, 213 N. C., 569, 197 S. E., 146. In reality, there is no essential difference between negligence in the plaintiff and negligence in the defendant. Liske v. Walton, 198 N. C., 741, 153 S. E., 318. See also Sebastian v. Motor Lines, supra. Stacy, C. J., there said: “The criterion for establishing both are the same. . . . The same standard applies alike to both.” In this connection it is again appropriate to refer to section 135 of chapter 407, Public Laws 1937, relating to “pedestrian’s rights and duties.” If the plaintiff, as pedestrian, violated the provisions of the statute relating to crossing between adjacent intersections at which traffic control lights are operated, this would be evidence of negligence, Sebastian v. Motor Lines, supra; Marsh v. Byrd, 214 N. C., 669, 200 S. E., *582 389; Stephens v. Johnson, ante, 133, 1 S. E. 2d., 367, to be considered with other evidence in the case in determining whether the plaintiff is actually guilty of negligence which proximately caused or contributed to his injury. Upon the evidence in this record, we are of opinion that the question is for the jury. With respect to the duty of plaintiff as well as the duty of defendant to keep a proper lookout, see Quinn v. R. R., 213 N. C., 48, 195 S. E., 85. The judgment below is Reversed.