Gentry v. Hackenberg , 23 N.C. App. 96 ( 1974 )

BRITT, Judge.

We hold that the directed verdict was proper on the ground that the evidence established that plaintiff was contributorily negligent as a matter of law.

Plaintiff’s evidence, considered in the light most favorable to her, tended to show: On 24 March 1972, she lived in a rural area on the east side of U. S. 220 and had a garden on the west side of the highway. She had lived in the immediate area for fifty-one years. The pavement of the highway in front of her home was 24 feet wide and the adjoining shoulders of the road were 10 or 12 feet wide. At that point, the highway was- straight for a considerable distance in both directions, there being an unobstructed view to the south for some three-fourths mile.

On that morning — it being a fair day — plaintiff had been to her garden on the west side of the highway and was returning to her home on the other side of the road. In addition to her regular attire, she was wearing a bonnet and was carrying a bucket and a hoe. When she reached the west shoulder of the highway, she stopped and waited while three southbound cars passed. Seeing no other cars coming from the north, but seeing a car approaching from the south “at the bottom of the hill” (some 1000 feet away), she proceeded to walk across the paved portion of the highway. After she reached the east shoulder of the road, she was struck by defendant’s automobile which was traveling north.

The parties stipulated that the maximum posted speed limit at the scene of the accident was 60 m.p.h. Plaintiff introduced portions of defendant’s deposition which tended to show: When defendant first saw plaintiff she was in the middle of the southbound lane, walking east at a normal gait. Defendant applied his brakes and drove onto the east shoulder of the road to avoid striking plaintiff. At the time of the impact, all four wheels of defendant’s car were on the east shoulder and plaintiff struck his left rear fender.

We think the disposition of this appeal is controlled by Blake v. Mallard, 262 N.C. 62, 136 S.E. 2d 214 (1964). In BlaJce, page 65, Justice Sharp, speaking for the court stated the following rule:

“The 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, (citation omitted). However, the court will nonsuit 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, (citations omitted.)

“ ... It was plaintiff’s duty to look for approaching traffic before she attempted to cross the highway.”

See also Gamble v. Sears, 252 N.C. 706, 114 S.E. 2d 677 (1960).

In the case at bar, plaintiff observed defendant’s approaching vehicle, but in disregard of it attempted to cross the road. There is no evidence of a marked cross-walk, therefore, plaintiff should have yielded the right-of-way to defendant’s vehicle. Not doing so, plaintiff’s negligence was a proximate cause of her injury and the trial court, therefore, properly granted the motion for directed verdict in favor of defendant.

Affirmed.

Judges Hedrick and Baley concur.