Derrick v. Ray

WELLS, Judge. Summary judgment under G.S. 1A-1, Rule 56 is awarded to a party if he shows to the court that no genuine issues of material [222] fact exist and that he is entitled to summary judgment as a matter of law. Hockaday v. Morse, 57 N.C. App. 109, 290 S.E. 2d 763, disc. review denied, 306 N.C. 384, 294 S.E. 2d 209 (1982). It is only in the exceptional negligence case that the rule should be invoked. Rogers v. Peabody Coal Company, 342 F. 2d 749 (6th Cir. 1965). This is so because even in a case in which there may be no substantial dispute as to what occurred, it usually remains for the jury, under appropriate instructions from the court, to apply the standard of the reasonably prudent man to the facts of the case .... Robinson v. McMahan, 11 N.C. App. 275, 280, 181 S.E. 2d 147, 150 (1971), cert. denied, 279 N.C. 395, 183 S.E. 2d 243 (1971). “[W]hen the facts are such that reasonable men could differ on the issue of negligence courts have generally considered summary judgment improper.” Gladstein v. South Square Assoc., 39 N.C. App. 171, 174, 249 S.E. 2d 827, 829 (1978), disc. review denied, 296 N.C. 736, 254 S.E. 2d 178 (1979). In applying this standard to the case sub judice, summary judgment for defendants is proper only if the forecast of evidence either fails to show negligence on their part or establishes plaintiffs contributory negligence so clearly that reasonable men could not differ. Defendants argue that the forecast of evidence clearly established that had plaintiff brought her vehicle forward from the point where she allegedly stopped and looked again before entering the intersection, she would have seen defendants’ car. They contend that because of her failure to do so, she was con-tributorily negligent as a matter of law. Defendants rely heavily upon the testimony of Dr. Cribbins that once a person passes the point where plaintiff stopped her vehicle, the “blocked view no longer exists.” Earlier in his deposition, however, Dr. Cribbons had testified, “[T]here is still a blind spot in my judgment when she passes that point.” Also in his affidavit, Dr. Cribbins concluded that a “horizontal sight distance problem” exists at the intersection. Defendants’ evidence does not conclusively show that plaintiff failed to maintain a proper lookout or failed to see what was in clear view. Defendants have cited numerous cases to support their position. Careful examination of these cases, where the courts found contributory negligence as a matter of law, reveals distinguishing [223] characteristics. In Howard v. Melvin, 262 N.C. 569, 138 S.E. 2d 238 (1964), the plaintiff believed he stopped 19 feet from the main road before attempting to cross the intersection. In Edwards v. Vaughn and Mims v. Vaughn, 238 N.C. 89, 76 S.E. 2d 359 (1953), the plaintiff stopped 15 feet from the intersection at a point where he had an unobstructed view of only 150 feet and where he saw defendant’s car approaching. The plaintiff in Badders v. Lassiter, 240 N.C. 413, 82 S.E. 2d 357 (1954), stopped 10 to 12 feet from the intersection, saw defendant’s car about a block away on the dominant highway and proceeded across the intersection. In Morrisette v. Boone Co., 235 N.C. 162, 69 S.E. 2d 239 (1952), plaintiff stopped 30 feet from the intersection before proceeding across. In the remaining two cases cited by defendants, the Supreme Court upheld findings of contributory negligence as a matter of law even though the plaintiffs stopped within six feet of the intersection. Warren v. Lewis, 273 N.C. 457, 160 S.E. 2d 305 (1968) and Matheny v. Motor Lines, 233 N.C. 673, 65 S.E. 2d 361 (1951). The plaintiff in Warren, supra, however, pulled onto the main highway from a private driveway and collided with defendant’s vehicle when his view from the intersection to his right was unobstructed to the top of a hill 400 to 600 feet west of the intersection and an automobile could be seen an additional 50 feet beyond the crest. The Court noted that plaintiff was not wearing glasses when the officer arrived at the scene even though he was restricted to them. The plaintiff in Matheny, supra, pulled out in front of a truck going 30 m.p.h. when he had an unobstructed view of approaching traffic. The Court found that “the over-all picture of the collision is one of negligence on the part of the plaintiff in attempting to cross the highway immediately in front of the approaching truck with its bulk and speed plainly visible.” Id. at 680-681, 65 S.E. 2d at 367. The facts as presented in the forecast of evidence now before us do not establish contributory negligence so clearly that no other conclusion may be reasonably drawn therefrom. Reasonable men could differ on the issue of whether plaintiffs stopping her Volkswagen within four feet of the intersection constituted contributory negligence. Pursuant to G.S. 20-158(a)(l), plaintiff was required “to come to a complete stop at the entrance to that portion of the intersection designated as the main traveled or through highway.” Her failure to stop, however, is not considered [224] negligence or contributory negligence per se. G.S. 20458(d). Under this statute [i]t is the duty of the driver of a motor vehicle on such servi-ent highway to stop at such time and place as the physical conditions may require in order for him to observe traffic conditions on the highways and to determine when, in the exercise of due care, he may enter or cross the intersecting highway with reasonable safety. Edwards v. Vaughn and Mims v. Vaughn, supra, at 93, 76 S.E. 2d at 363. In the case sub judice, there was a material issue of fact, upon which reasonable men could differ, as to whether plaintiff exercised due care in crossing the intersection. In a similar fact situation, the North Carolina Supreme Court upheld judgment in plaintiffs favor. Hawes v. Refining Co., 236 N.C. 643, 74 S.E. 2d 17 (1953). In Hawes, the plaintiff presented evidence that he was traveling along the servient road and stopped about five feet from the intersection. Plaintiff then looked to the south and saw nothing coming. His view in that direction was about 100 yards. Plaintiff drove halfway into the main road at a speed of 5 m.p.h. before he was struck by defendant’s car. Defendant was traveling at a speed of 50 to 55 m.p.h. In upholding the judgment for plaintiff, the Court emphasized: [A]pplying mathematics to the rate of speed at which the evidence of plaintiff tends to show the two automobiles were traveling, it is not unreasonable to infer that while plaintiff’s automobile was starting and traveling ten feet or more, the automobile of defendant could come from beyond the range of vision of one stopping at the intersection, whereas if traveling at a prudent rate of speed it would not be expected to do so. In other words, the case does not come within the purview of those cases where the evidence tends to show that the driver failed to see what was in clear view. Id. at 651, 74 S.E. 2d at 22. When the forecast of the evidence here is viewed in the light most favorable to plaintiff, it shows negligence on defendants’ part and raises a genuine issue of material fact as to any contributory negligence on plaintiffs part. We hold that the trial [225] court erred in granting summary judgment for defendants, since a reasonable inference could be drawn that plaintiff exercised ordinary care in attempting to cross the intersection and that defendant Craig Ray’s speeding or failure to reduce his speed was the proximate cause of the collision. Reversed. Chief Judge VAUGHN and Judge BRASWELL concur.