Asbury v. City of Raleigh

CLARK, Judge. [60] The plaintiff challenges as error the trial court’s granting of defendant’s motion for summary judgment. The plaintiff first argues that there were several genuine issues of material fact as to defendant’s negligence. We see no need to address each of these factual issues because the uncon-tradicted testimony and statements in the supporting depositions and affidavits clearly show that decedent was contribu-torily negligent and that decedent’s contributory negligence was a concurring, if not the sole proximate cause of the accident; and, as a consequence, plaintiff is barred from recovery. Griffin v. Ward, 267 N.C. 296, 299, 148 S.E. 2d 133 (1966). The decedent was negligent in several respects. First, we note that in the absence of sufficient avidence to show otherwise, the decedent, being older than fourteen years of age, is presumed to have sufficient capacity to be sensible of danger and to have power to avoid it. Welch v. Jenkins, 271 N.C. 138, 142, 155 S.E. 2d 763 (1967); Baker v. Seaboard Air Line Ry., 150 N.C. 562, 564, 64 S.E. 506, 507, 509 (1909). Similarly, “under our motor vehicle statutes a bicycle is deemed a vehicle, and the rider of a bicycle upon the highway is subject to the applicable provisions of the statutes relating to motor vehicles.” Van Dyke v. Atlantic Greyhound Corporation, 218 N.C. 283, 286,10 S.E. 2d 727 (1940). Second, there is no conflict in the testimony of the eyewitnesses that the decedent had crossed over to the east side of Grantland Drive just before the accident, in which case, the decedent would also be negligent for failure to operate his bicycle upon the right half of the roadway, within the meaning of N.C. Gen. Stat. § 20-146(a). The plaintiff, however, argues that the objective facts show otherwise, in that the decedent and the bus were both moving eastward at the time of impact and that, even when the bus stopped, part of the bus extended over the center line of the road. Were there no cars legally parked on the east side of Grantland Drive or were there markings on the pavement dividing lanes of travel, this argument might have merit, but where there is room both for the bus and the approaching vehicles to pass each other while abreast the parked car, it is clear that though the bus was not technically within the center of the road, it was nonetheless within its half of the “main61 traveled portion of the roadway” within the meaning of N.C. Gen. Stat. § 20-148. We note that if there were no room for the bus and another oncoming vehicle to pass each other when abreast of the parked car, it would have been the duty of the bus driver to have yielded to the oncoming vehicle, N.C. Gen. Stat. § 20-146(a)(2). Such was not true here, for even if the parked car were as wide as the city bus herein (8 feet), there still would have been two nine-foot-wide lanes in which both the bicycle and the bus could travel. The undisputed facts therefore indicate that decedent drove his bicycle over four feet into the bus’s half of the “main-traveled portion” of the roadway at the time of the impact. For this same reason there is also no merit in plaintiffs contention that the bus driver was negligent and proximately caused the accident because the driver did not slow down or stop when, after he saw the decedent in decedent’s right lane at the top of the hill, the driver nonetheless proceeded around the parked car without slowing down. At this point in time there was no indication that decedent was moving eastward, and it was entirely reasonable for the bus driver to assume that the decedent would remain within his half of the main-traveled portion of the road. Similarly, the activity of passing the parked vehicle cannot be deemed to be an act of original negligence on the part of the bus driver which in turn created the decedent’s perilous condition. We now turn to plaintiffs argument that defendants are nonetheless liable under the doctrine of last clear chance. The doctrine “is not a single rule, but is a series of different rules applicable to differing factual situations.” Exum v. Boyles, 272 N.C. 567, 575, 158 S.E. 2d 845, 852 (1968). We note that this case is not one in which the peril of plaintiffs decedent was created by the defendant, therefore, application of the rule of Section 480, of the Restatement of the Law of Torts, Negligence, would not apply. Exum, supra. Based on our discussion above, there are no facts which would tend to indicate any “original negligence” on the part of the defendant driver which created decedent’s peril; rather, the evidence without conflict suggests that the decedent’s peril was created by his own inattention and his own act of directing his bicycle into the path of the bus. Therefore, [62] we choose to apply the rule of § 479 of the Restatement of the Law, Torts, Negligence, quoted in Exum, supra, which entitles “plaintiff who has negligently subjected himself to a risk of harm from defendant’s subsequent negligence” to recover if, immediately preceding the harm: “(a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and (b) the defendant (i) knows of the plaintiffs situation and realizes the helpless peril involved therein; or (ii) knows of the plaintiffs situation and has reason to realize the peril involved therein; or (iii) would have discovered the plaintiffs situation and thus had reason to realize the plaintiffs helpless peril had he exercised the vigilance which it was his duty tó the plaintiff to exercise, and (c) thereafter is negligent in failing to utilize with reasonable care and competence his then existing ability to avoid harming the plaintiff.” (Emphasis added inExum, supra.) 272 N.C. at 574-75, 158 S.E. 2d at 852. The gist of the rule is “peril and discovery of such peril in time to avoid injury.” Exum, supra. We see no material issue of the facts that: (1) decedent’s peril was not apparent in time for the defendant to avoid the accident, and (2) that the defendant driver acted prudently to avoid the accident. Plaintiff argues that the driver saw the decedent before the driver began to pull out around the parked car, at a point 246 feet from the point of impact, and, citing Champion v. Waller, 268 N.C. 426, 150 S.E. 2d 783 (1966), that the mere fact that the decedent was on a bicycle, placed the driver on notice of a dangerous situation. We do not agree. First, as we have ex [63] plained, unlike the 13-year-old child in Champion, the decedent was almost 16 years of age and is presumed to be able to perceive danger and to act to avoid it. Second, at this point in time the driver saw the decedent in the middle of the west lane of travel and there was no indication that he was in any position of peril. No other person saw the bicyclist at this point in time. Plaintiff argues that Beverly Jones saw the decedent at the top of the hill “on our side” but her statement refers to a point in time when the bus was “going up” the hill, as opposed to when the bus was going down the preceding hill on the south side of the intersection and was in the act of passing the parked car. The driver’s testimony indicates that it was only after the bus had passed the parked car that it became apparent that the decedent, with his head down, was moving over to the bus’s lane of travel. A this point the driver was 172 feet from the point of impact. At this point the decedent was still not in peril and could, by the exercise of reasonable vigilance, have extricated himself from possible danger. Nonetheless, the driver immediately began to apply the brakes. The decedent continued in his lane of travel and began to cross over into the bus’s lane of travel. At this point the decedent had entered a position of peril, although it is still apparent that the decedent, by the exercise of reasonable vigilance, could have turned his wheel to avoid moving toward the bus. However, even assuming that the decedent was in peril and could not extricate himself, the driver nonetheless acted promptly to avert an accident by continuing to apply his brakes, swerving to the right, and blowing his horn several times. There is no testimony which indicates that the accident could have been avoided by the mere flick of a wrist as the plaintiff suggests. On the contrary, given the speed and trajectory of the bicycle, and the relative size of the bus, it would have been difficult, if not impossible, for the bus to have avoided the collision. The plaintiff is required to offer evidence beyond speculation that the bus driver had a “clear” chance, as opposed to a mere possible chance to avoid the accident. Here, however, every eyewitness testified to the effect that the driver did all he could do. See, e.g., Van Dyke v. Atlantic Greyhound Corporation, supra. There is no material contradiction in any of this testimony. [64] Affirmed. Chief Judge Morris and Judge Erwin concur.