Clark v. Bodycombe

ARNOLD, Judge. The sole question presented by this appeal is whether the evidence was sufficient to submit the case to the jury. Plaintiff is entitled to have her evidence taken in the light most favorable to her, giving her the benefit of every reasonable inference to be drawn therefrom and resolving contradictions in her favor, and to have considered only so much of defendant’s evidence [148] as is favorable to her. Bowen v. Gardner, 275 N.C. 363, 168 S.E. 2d 47 (1969); Rosser v. Smith, 260 N.C. 647, 133 S.E. 2d 499 (1963). From the evidence, viewed in this manner, the jury could have found the following facts: Plaintiff, then a sixty-two year old woman, was walking westerly on the right-hand side of Rosemary Street between Columbia Street and Pritchard Avenue. The weather was misty and hazy. Plaintiff was wearing a light blue and grey coat. She came to a driveway where an automobile blocked her path. Seeing no vehicles approaching, she stepped no more than a foot into the street and walked around the car. She had almost reached the other side of the driveway when she was hit. That was all she remembered. She was found lying in the street about two feet from the curb. Defendant testified that he was proceeding west on Rosemary- Street following a line of traffic at a speed of twenty to twenty-five miles per hour. His automobile headlights and windshield wipers were on. He has had two cataract operations, and, although he wears glasses which correct his vision to twenty-forty, his peripheral vision is limited. At the time of the accident his vision was further impaired by the lights of oncoming traffic. He saw a shadow to his left and struck a person on the left side of his car. Some 73 feet of medium skidmarks were found in the westbound lane of Rosemary Street, leading to defendant’s car and veering to the right. From the foregoing facts, we are of the opinion that plaintiff has failed to make out a case of negligence on the part of defendant and moreover has established her own contributory negligence as a matter of law. At the time of the accident, plaintiff was under a duty to yield the right-of-way and to walk on the left side facing approaching traffic. Defendant had the right-of-way subject to a duty to exercise reasonable care and avoid colliding with plaintiff. G.S. 20-174(a), (d) and (e). Plaintiff also had a duty to exercise reasonable care for her own safety. Jenkins v. Thomas, 260 N.C. 768, 133 S.E. 2d 694 (1963); Rosser v. Smith, supra; Garmon v. Thomas, 241 N.C. 412, 85 S.E. 2d 589 (1955). There is no evidence that defendant’s automobile was traveling at excessive speed. While evidence of skidmarks suggests that defendant became aware of plaintiff’s presence sooner than he [149] indicated in his testimony, there is no . evidence that'iplaintiff was unaware of the approaching automobile or was unable to remove herself from its path. Garmon v. Thomas, supra. See Jenkins v. Thomas, supra. See also Tysinger v. Dairy Products, 225 N.C. 717, 36 S.E. 2d 246 (1945). Plaintiff had the burden of showing both' negligence:,and proximate cause. See Tysinger v. Dairy Products,, süpra. The evidence in this case does not show actionable negligence on the part of defendant. His motion for directed verdict was properly granted. The order of the trial court is Affirmed. Judge Martin concurs. Judge Clark dissents.