Oliver v. Powell

VAUGHN, Judge. The principal question raised on this appeal is whether the trial court erred in granting defendant’s motion for directed verdict. Before we reach this issue, we must address the issue of whether the trial court properly excluded certain evidence offered by plaintiff through the deposition of Roland Smith. Defendant, at the outset, contends Roland Smith was not testifying about the same accident. Smith remembered an accident in 1977 on Wendover Avenue where it intersects with Maple Street involving a light-colored Volkswagen and a pedestrian. Smith did not remember the exact date and he recalled that it was drizzling rain that night and that the pavement was glistening because of the rain. All the investigating police officers testified it was not raining at all that night and that the [65] pavement was dry. The police report diagram did not correspond with his recollection of the accident. Except for these details, the testimony of the accident Smith observed is substantially the same as the testimony of the investigating officers about the accident scene they observed. The testimony of the officers and Smith was identical in respect to the time of the accident, the make of car, its light color, the exact location of the accident and the positions at which the pedestrian and the car which hit him came to rest after the collision. The evidence presents a sufficient foundation that Smith was testifying about the accident involving defendant and plaintiffs intestate. The jury could, of course, find otherwise and choose to ignore the testimony. He was, however, a competent witness to testify about the accident. See Honeycutt v. Strube, 261 N.C. 59, 134 S.E. 2d 110 (1964). The question thus becomes whether it was proper for the trial court to exclude certain evidence offered by this witness. This evidence is crucial for it presents some evidence of negligence on the part of defendant pled by plaintiff. The trial court excluded testimony by Smith that defendant was “doing about fifty-five or close to sixty because I was doing fifty and it was in front of me.” The posted maximum speed on Wendover at that point was forty-five. Any person of ordinary intelligence, who has an opportunity to observe a vehicle, is competent to testify as to the rate of speed of such vehicle and can express an opinion as to its speed. Honeycutt v. Strube, supra; Lookabill v. Regan, 247 N.C. 199, 100 S.E. 2d 521 (1957) Smith had a reasonable opportunity to observe the Volkswagen which traveled beside his car and then pulled ahead of his car. It was error for the trial court not to admit this testimony of the speed of the Volkswagen. Other testimony concerning skid marks and the time between which Smith saw the Volkswagen brake lights come on and he heard the thud or actually saw the car hit the pedestrian does not make the opinion on speed of the car inherently incredible or contradictory to the physical evidence. What Smith, who had problems measuring distance, described as three car lengths, one of the investigating officers described as a distance of 1500 feet. The skid marks do not give a [66] conclusive indication of speed and stopping time because of the collision with the median. Contrast Jones v. Schaffer, 252 N.C. 368, 114 S.E. 2d 105 (1960); Hall v. Kimber, 6 N.C. App. 669, 171 S.E. 2d 99 (1969). The trial court also excluded testimony that Smith saw what looked like beer cans in the backseat of defendant’s car. Plaintiff contends this was relevant evidence that defendant was intoxicated at the time of the collision. This is the only evidence of such and the trial court properly excluded it as irrelevant and too remote. Merchants Distributors v. Hutchinson, 16 N.C. App. 655, 193 S.E. 2d 436 (1972). The proffered evidence did not raise even a conjecture that defendant was under the influence of alcohol at the time of the collision. The central question of this case is whether the directed verdict was proper because plaintiff did not present sufficient proof of defendant’s negligence or because the evidence demonstrates that plaintiffs intestate was contributorily negligent as a matter of law. We hold it was error to grant the directed verdict for defendant for the evidence in a light most favorable to plaintiff presents questions of fact on both the issue of negligence and contributory negligence which entitled plaintiff to have the case presented to a jury. Duties are imposed on both a motorist and a pedestrian to be reasonably prudent persons in the use of the highways of the State. These duties are codified in part in G.S. 20-174, which provides in part the following. (a) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway. ... (e) Notwithstanding the provisions of this section, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, and shall give warning by sounding the horn when necessary. ... [67] As stated in Blake v. Mallard, 262 N.C. 62,65,136 S.E. 2d 214,216 (1964) (citations omitted), [t]he failure of a pedestrian crossing a roadway at a' point other than a crosswalk to yield the right of way to a motor vehicle is not contributory negligence per se; it is only evidence of negligence. However, the court will non-suit a plaintiff-pedestrian on the ground of contributory negligence when all the evidence so clearly establishes his failure to yield the right of way as one of the proximate causes of his injuries that no other reasonable conclusion is possible. Our courts have considered many cases involving pedestrians being hit by automobiles. The case at hand, when considered in a light most favorable to plaintiff, presents the following situation. Plaintiffs intestate was crossing Wendover Avenue near its intersection with Maple Street at a point where he would be visible to defendant for 1500 feet at night. Defendant, exceeding the maximum speed of forty-five miles per hour by fifteen miles per hour, bore down on plaintiffs intestate who was able to reach the median before defendant was upon him. Plaintiffs intestate, standing on the median, was looking for traffic in the lanes opposite the lane defendant was traveling in and opposite those lanes he had just crossed. Defendant, meanwhile, applied his brakes on seeing plaintiffs intestate, swerved upon the median and there struck plaintiff in the back as he stood on the median of the divided four lane highway. An inference from this evidence is that plaintiffs intestate had yielded the right-of-way but was struck when defendant lost control of his car. We hold the evidence in a light most favorable to plaintiff presents clear evidence of negligence on the part of defendant in the control of his car. It does not demonstrate that plaintiffs intestate was contributorily negligent as a matter of law. This holding is consistent with the holdings of the courts of this State in similar factual situations. Ragland v. Moore, 299 N.C. 360, 261 S.E. 2d 666 (1980); Landini v. Steelman, 243 N.C. 146, 90 [68] S.E. 2d 377 (1955); Goodson v. Williams, 237 N.C. 291, 74 S.E. 2d 762 (1953); Williams v. Henderson, 230 N.C. 707, 55 S.E. 2d 462 (1949); Morris v. Minix, 4 N.C. App. 634, 167 S.E. 2d 494 (1969); contrast Anderson v. Carter, 272 N.C. 426, 158 S.E. 2d 607 (1968); Blake v. Mallard, supra; Gentry v. Hackenburg, 23 N.C. App. 96, 208 S.E. 2d 279 (1974). The case of Gentry v. Hackenburg, supra, involved a situation where a directed verdict was affirmed where the plaintiff was struck while attempting to cross a roadway. Gentry was crossing at a point where the view was unobstructed for three quarters of a mile. She saw Hackenburg’s car coming but crossed the road in front of it. She was not struck until she reached the shoulder of the road and she was struck by Hacken-burg’s left rear fender. He applied his brakes, drove entirely off the road to avoid hitting plaintiff and the court held Gentry’s disregard of the approach of the oncoming car in her attempt to cross the road to be contributory negligence as a matter of law. The case is factually similar only to the extent that both pedestrians were struck somewhere off the main traveled portion of the road. The evidence is uncontradicted that the pedestrian in the Hackenburg case did not yield the right-of-way as required by G.S. 20-174(a). The testimony of the plaintiff and the testimony of the driver who hit her made this clear. In the present case, the evidence of such is contradicted and presented a jury question. Reversed and remanded. Judges Parker and Hedrick concur.