Miller v. Wright

LAKE, J. There is no evidence in the record to show that the plaintiff has been issued letters of administration upon the estate of Jerry Donald Miller. The allegation in the complaint that he is such administrator not being admitted in the answer, this is sufficient ground for affirmance of the judgment of nonsuit. Kinlaw v. R. R., 269 N.C. 110, 152 S.E. 2d 329; Graves v. Welborn, 260 N.C. 688, 133 S.E. 2d 761; Carr v. Lee, 249 N.C. 712, 107 S.E. 2d 544. The judgment of nonsuit must also be affirmed for the reason that the evidence of the plaintiff, considered in the light most favorable to him, does not show any negligent act or omission of the defendant Hinson which was the proximate cause of the injury and death of Jerry Donald Miller. There is no evidence whatever to show where Jerry Miller was or what he was doing immediately prior to the impact. The adverse examination of Hinson, introduced in evidence by the plaintiff, and uncontradicted, is that at the moment of impact Hinson’s automobile was on the pavement. It follows that the deceased, or part or all of his bicycle, or both, were on the pavement when struck. We can only conjecture as to whether he was riding the bicycle or walking or standing beside it, whether he was proceeding along the .highway or attempting to cross it. The condition of the bicycle, introduced by the plaintiff, compels the conclusion that it was struck upon the front wheel either in a head-on collision {i.e., while Miller was proceeding west upon the lane for eastbound traffic), or while Miller was crossing or preparing to cross the two lanes for eastbound travel from the grass dividing strip. In either event, any reflecting tape or other light-reflecting device upon the rear mudguard would not be visible to Hinson as he approached. There was no light on the front of the bicycle. There is no evidence to indicate that Hinson was driving at an excessive speed or that his vehicle left the paved surface prior to the impact. There is an obvious conflict between the deposition of McRorie and the adverse examination of Hinson, both introduced in evidence by the plaintiff. According to McRorie’s deposition, at the time Hinson’s brake lights came on, which Hinson’s testimony fixes as the moment of impact, the outside lane for eastbound travel was free of traffic and McRorie’s car was in the inside lane for eastbound traffic following Hinson’s. According to Hinson’s testimony on ad [671] verse examination, there was no car following him in the inside lane, and there was another vehicle abreast of his in the outside lane so that he could not have turned into that lane had he seen Miller. Upon a motion for judgment of nonsuit, discrepancies in the plaintiff’s evidence must be resolved in his favor. Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E. 2d 338; Bundy v. Powell, 229 N.C. 707, 51 S.E. 2d 307. The plaintiff cannot, of course, have the benefit of both of the conflicting accounts simultaneously. In his brief, the plaintiff says, “The defendant, Hinson, was in the act of passing another eastbound vehicle which was proceeding in the outside curb lane.” Thus, he adopts Hinson’s version of what occurred and abandons his allegation in the complaint that Hinson could have turned his automobile into the outside lane for eastbound travel. If, however, we accept McRorie!s account, it was not negligence for Hinson to be driving in the inner lane for eastbound traffic prior to the time when he saw, or should have seen, Miller on his bicycle therein or in the immediate vicinity thereof. G.S. 20-146 (a) (4). The uncontradicted evidence is that Hinson never saw Miller or his bicycle prior to the impact. His car was obviously under control for he stopped within a few feet of the point of impact which took him by surprise. There is, therefore, no evidence to support any of the allegations of the complaint with reference to negligence on the part of Hinson unless the evidence is sufficient to support a finding that he did not maintain a proper lookout. Upon the question of lookout, the only evidence is the testimony of Hinson on adverse examination, introduced in evidence by the plaintiff. A driver of a motor vehicle upon the highway owes a duty to all other persons using the highway to maintain a reasonable lookout in the direction of his travel. Sugg v. Baker, 261 N.C. 579, 135 S.E. 2d 565; Clontz v. Krimminger, 253 N.C. 252, 116 S.E. 2d 804. When one is driving at night the duty to maintain a reasonable lookout includes the duty to have adequate headlights burning upon the vehicle so that such lookout can be effective. 60 C.J.S., Motor Vehicles, § 286. Hinson testified that his headlights were burning “on low beam” but that, nevertheless, they enabled him to see 250 feet. This is uncontradicted. The adequacy of headlights upon a motor vehicle, in normal atmospheric conditions such as prevailed upon this occasion, is determined by G.S. 20-129 and G.S. 20-131. In O’Berry v. Perry, 266 N.C. 77, 145 S.E. 2d 321, we said, “The function of a front light or headlight, defined by G.S. 20-129 and G.S. 20-131, is to produce a driving light sufficient, under normal atmospheric conditions, to enable the operator to see a person 200 feet ahead.” Thus, the plaintiff’s evidence discloses no inadequacy of [672] Hinson’s headlights on this occasion, even though they were on the depressed or low beam. Hinson’s testimony was that he was looking straight ahead and saw nothing in front of him and then, being in the act of passing another car, glanced for a “split second” at it to see that he had the necessary clearance for passing in safety. This was not negligence. If, at this point, we return to McRorie’s version of the occurrence and assume there was no other car abreast of Hinson in the outside lane, the requirement of a reasonable lookout does not mean that a driver having looked in the direction of his travel and seen nothing in his path or its vicinity, may not cast his eyes for a “split second” to the side and then back upon the road. Thus, the plaintiff’s evidence does not show a failure by Hinson to maintain a reasonable lookout in the direction of his travel. Mere proof of a collision and resulting injury is not enough to survive a motion for judgment of nonsuit. The plaintiff’s evidence must not leave the matter to speculation or conjecture but, when interpreted most favorably to him, must be sufficient to support a finding that the defendant was negligent, as alleged in the complaint, and that such negligence was the proximate cause of the injury. Ashe v. Builders Co., 267 N.C. 384, 148 S.E. 2d 244; Jackson v. Gin Co., 255 N.C. 194, 120 S.E. 2d 540. The plaintiff’s evidence having failed to show negligence by Hinson as a proximate cause of the injury and death of Miller, the judgment of nonsuit was properly entered. A further reason compelling the affirmance of the judgment below is that the plaintiff’s evidence compels the conclusion that if Hinson was negligent, as alleged in the complaint, Jerry Miller was guilty of contributory negligence which bars the plaintiff’s recovery. While the evidence does not disclose where he was immediately prior to the collision or whether he was riding the bicycle or walking or standing beside it, the plaintiff’s evidence leads inescapably to one of these conclusions: (1) He was riding an unlighted bicycle west-wardly in the lane for eastbound traffic; (2) he was attempting to cross the highway in the face of an oncoming motor vehicle so near that such attempt to cross its path made a collision inevitable; (3) he was walking or standing beside his bicycle upon, or with his bicycle upon, the pavement or standing with the front wheel of his bicycle upon the pavement and he continued so to do until the moment of impact, though he could have seen the oncoming automobile in time to move out of its path. In any of these alternatives, Miller failed to exercise reasonable care for his own safety and that failure was one of the proximate causes of his injury and death. Affirmed.