Basden v. Sutton

MORRIS, J. Plaintiff’s exception and assignment of error presents two questions on appeal: (1) Did plaintiff offer sufficient evidence to make out a prima facie case of actionable negligence against the defendant? and (2) If so, does plaintiff’s evidence establish the contributory negligence of her intestate as a matter of law? The law imposes upon a motorist certain positive duties and requires 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 a manner as will not endanger or be likely to endanger the lives or property of others. G.S. 20-140; . . . Fie must operate his vehicle at a reasonable rate of speed, keep a proper lookout for persons on or near the highway, Cox v. Lee, ante [230 N.C.], 155, decrease his speed when any special hazard exists with respect to pedestrians, G.S. 20-141 (c) . . .” Williams v. Henderson, 230 N.C. 707, 55 S.E. 2d 462 (1949). There was evidence here that Sutton was operating his car at a speed of about 60 miles per hour at a time when the highway was wet, when it was raining, and at a place where the posted speed limit was 55 miles per hour. G.S. 20-141 (b)(4) makes it unlawful, in this circumstance, to operate a passenger car in excess of 55 miles per hour. A violation of G.S. 20-141 (b) (4) is negligence per se. Price v. Miller, 271 N.C. 690, 157 S.E. 2d 347 (1967). We think the plaintiff offered sufficient evidence of actionable negligence on the part of defendant Sutton to carry the case to the jury. The crucial question remains of the contributory negligence as a matter of law of plaintiff’s intestate. “The law imposes upon a person sui juris the duty to use ordinary care to protect himself from injury, and the degree of such care should be commensurate with the danger to be avoided, (citations omitted.)” Rosser v. Smith, 260 N.C. 647, 133 S.E. 2d 499 (1963). Plaintiff’s own evidence shows that her intestate was standing on the shoulder of the road when the Sutton car was seen approaching at a rapid rate of speed. His body was found in the west lane of the highway partially under the Sutton car. The conclusion is inescapable that he left a position of safety and placed himself [10] in a position of danger with full knowledge of all the circumstances and the danger inherent in attempting to remove tobacco until the approaching car had passed. The evidence is that one of his companions jumped from the path of the oncoming car and one went in the field. Plaintiff’s intestate failed to exercise ordinary care to protect himself from injury. It is manifest from plaintiff’s own evidence, which is all the evidence, that the negligence of her intestate was at least a proximate cause of his injuries and death. In our opinion, no other conclusion can reasonably be drawn. The judgment of the trial court allowing the motion for nonsuit must, therefore, be Affirmed. MallaRD, C.J., and Hedricií, J., concur.