Francis v. Brickhouse

WEBB, Judge. We note at the outset that the testimony of Adrian Britton Phelps as to what the defendant’s fiance told her is hearsay and should have been excluded. It was not admissible as a spontaneous utterance. See 1 Stansbury’s N.C. Evidence § 164, p. 554 et seq. (Brandis rev. 1973). In determining whether the defendant’s motion for a directed verdict was properly allowed, we must consider this evidence although it was erroneously admitted. Beal v. Supply Co., 36 N.C. App. 505, 244 S.E. 2d 463 (1978). We hold that considering the evidence in the most favorable light to the plaintiff, the jury could conclude that by accelerating his automobile when he saw Joe Twiddy, the defendant did something which a reasonable man would not have done which was a proximate cause of the plaintiffs injuries. In the light most favorable to the plaintiff, we hold that when the plaintiff saw the defendant’s automobile turning at the back of the parking lot and walked across the driveway of the lot without looking back again, this was something a reasonable man would [435] not have done. See Brooks v. Boucher, 22 N.C. App. 676, 207 S.E. 2d 282, cert. denied, 286 N.C. 211, 209 S.E. 2d 319 (1974). Taking into account the plaintiffs evidence that defendant accelerated his automobile when he saw Joe Twiddy, we hold that all the evidence does not so clearly establish the plaintiffs negligence as a proximate cause of the collision that the jury could reach no other conclusion. This makes contributory negligence an issue for the jury. See Ragland v. Moore, 299 N.C. 360, 261 S.E. 2d 666 (1980). Even if the plaintiff had been looking at the approaching automobile, the sudden acceleration could have caused the injuries. In that case we cannot say the failure to look would be a cause without which the collision would not have occurred. We also hold the court should have submitted an issue to the jury as to the last clear chance. The parking lot was 195 feet deep. The defendant turned his automobile at the back of the lot and started driving toward the front of the lot. There is evidence in the record that the plaintiff started walking across the driveway of the lot and was inattentive to the danger. We believe it is a jury question as to whether the defendant, by the exercise of reasonable vigilance could have avoided hitting the plaintiff, who, due to his inattention, had placed himself in a position of helpless peril. See Exum v. Boyles, 272 N.C. 567, 158 S.E. 2d 845 (1968). For reasons stated in this opinion, the judgment directing a verdict in favor of plaintiff is reversed. Reversed. Judges Vaughn and Martin (Robert M.) concur.