Hodgin v. Guilford Tractor & Implement Co.

Higgins, J. The plaintiff’s assignments of error Nos. 1 through 7 involve the admission or exclusion of evidence on the first issue, and assignments Nos. 8, 9, 16 and 18 relate to the court’s charge on that issue. Since the jury decided it in the plaintiff’s favor, error, if any, was rendered harmless. “Plaintiff is in no [580] position to complain of error, if any there was, in the charge on the first issue, since that issue was answered in his favor.” (citing cases) Anderson v. Office Supplies, 236 N.C. 519, 73 S.E. 2d 141. For additional authorities, see Strong’s North Carolina Index, Vol. 1, Appeal & Error, Sec. 20, Note 213, p. 91. The plaintiff does not assign as error the admission or exclusion of testimony on the second issue. She does, however, especially by assignments Nos. 14 and 15, question the correctness of the court’s charge relative to the duty of a pedestrian in crossing a highway not at an intersection or crosswalk. The court charged: “. . . the duty was upon her to look east and look west and act as an ordinary prudent person and first ascertain as an ordinary prudent person if she could cross this road in safety from oncoming traffic, and she had a right to do it under those conditions. . . . Now, if . . . when she started across this highway . . . you find ... by the greater weight of the evidence that she did not yield the right of way to the defendant, and that the defendant was so close . . . that she could not as an ordinary prudent person reasonably believe and ascertain . . . that she could walk across this highway before this defendant’s car approached, and you find that she attempted to walk across under these conditions and you find that was one of the proximate causes that produced this injury, . . . then you would answer this issue ‘Yes.’ ” The court had previously charged the jury: “If you answer issue No. 1 (defendant’s negligence) ‘No,’ that ends the case. You don’t take up No. 2 (plaintiff’s contributory negligence). But if you answer No. 1 ‘Yes,’ you take up issue No. 2, and if you answer that, ‘No,’ you go down to the third issue (damages) ; but if you answer issue No. 1, ‘Yes,’ and issue No. 2, ‘Yes,’ that this plaintiff contributed to her own injury, then that ends the case.” The court then charged that the burden of proof on the first and third issues was on the plaintiff and the burden on the second issue was on the defendant. The court went into considerable detail in stating the contentions of the parties. The evidence on the issue of contributory negligence was simple. It was not in serious dispute. According to the plaintiff’s own story, and for some unexplained reason, she stood on the north side of the road for ten minutes waiting to catch a bus on the south side. Sometimes the bus stopped. Two or three of the drivers did not stop. When the bus approached she looked one time to the east, saw the defendant’s car, concluded she had time to cross. She never looked towards the defendant again. Her calculation insofar as the defendant was concerned was correct, but what she should have done and did not do was to see that [581] she could cross the defendant’s lane of travel in safety and also that she could cross the south lane. The passing Duke Power Company bus she had hoped to catch, and the Greyhound bus immediately behind it, failed to stop. Their continued movement not only kept her from completing the crossing, but marooned her eighteen inches north of the center line and in the defendant’s lane of traffic. Not knowing whether the bus would stop, she took the chance according to her own story. The mere fact she undertook to cross even in the nighttime is not negligence per se. Moore v. Bezalla, 241 N.C. 190, 84 S.E. 2d 817; Goodson v. Williams, 237 N.C. 291, 74 S.E. 2d 762; but when considered in the light of traffic conditions as she detailed them, if contributory negligence does not appear as a matter of law, the max-gin by which it falls short is narrow. Whitson v. Frances, 240 N.C. 733, 83 S.E. 2d 879; Tysinger v. Coble Dairies, 225 N. C. 717, 36 S.E. 2d 246. The Court, in eifect, told the jury to consider the plaintiff’s conduct in the light of her duty to use due care for her own safety. Merrell v. Kindley, 244 N.C. 118, 92 S.E. 2d 671; Gaskins v. Kelly, 228 N.C. 697, 47 S.E. 2d 34. The charge, considered in its entirety, was certainly as favorable to the plaintiff on the decisive second issue as the law permitted. No valid reason is made to appear why the verdict and judgment should be disturbed. No error.