Bass v. Roberson ( 1964 )

134 S.E.2d 157 (1964) 261 N.C. 125

J. Alton BASS
v.
Patsy Alease ROBERSON and C. A. Roberson.

No. 526.

Supreme Court of North Carolina.

January 17, 1964.

Everette L. Doffermyre and James M. Johnson, Dunn, for plaintiff.

Dupree, Weaver, Horton & Cockman, Raleigh, for defendants.

DENNY, Chief Justice.

This is a borderline case. However, when the evidence adduced in the trial below is considered in the light most favorable to the plaintiff, as it must be on a motion for judgment as of nonsuit, in our opinion it is sufficient to warrant its submission to the jury.

Since a new trial is awarded for reasons hereinafter stated, we refrain from a discussion of the evidence set forth in the record except to the extent deemed necessary in the disposition of other assignments of error. Powell v. Clark, 255 N.C. 707, 122 S.E.2d 706; Tucker v. Moorefield, 250 N. C. 340, 108 S.E.2d 637.

It is unlawful for a pedestrian to cross a street between intersections at which traffic signals are maintained unless there is a marked crosswalk between the intersections at which he may cross and on which he has the right of way over vehicular traffic, and his failure to observe the statutory requirements is evidence of negligence but not negligence per se. Templeton v. Kelley, 216 N.C. 487, 5 S.E.2d 555; Simpson v. Curry, 237 N.C. 260, 74 S.E.2d 649, and cited cases; Moore v. Bezalla, 241 N.C. 190, 84 S.E.2d 817; G.S. § 20-174.

Appellants' assignment of error No. 16 is to the following portion of the charge: "Now, gentlemen, we have a statute in this State, General Statutes 20-146, that I wish to read to you in connection with the allegations of the complaint. It is as follows: Upon all highways of sufficient width, except one-way streets, the driver of a vehicle shall drive the same upon the right-hand half of the highway and shall drive a slowmoving vehicle as closely as possible to the right-hand edge or curb of such highway unless it is impractical to travel upon such side of said highway, except when overtaking or passing another vehicle, subject to the limitations applicable in overtaking and passing set forth in General Statutes 20-149 and 20-150, which I charge you you are not to be concerned with in this case. I further instruct you, gentlemen of the jury, that if the defendant violated this statute just read to you, that it would constitute negligence. I charge you in this connection, if the defendant Patsy Carroll operated her automobile to the left of the center of said street, on the left half of said street, and she was not in the act of overtaking and passing another vehicle at that time, and that it was practical for her at that time to drive on the right half of said street, that this would be evidence of negligence."

The defendants in their further answer and defense allege that suddenly and without warning the plaintiff darted into the street immediately in front of the car being driven by defendant Patsy Carroll; that upon being confronted with this emergency which had been solely caused by the negligence of the plaintiff, defendant Patsy Carroll applied the brakes and "made every effort to avoid the plaintiff and had brought the car to a virtual stop when it lightly bumped against the plaintiff causing him to fall to the pavement."

It is further alleged that the plaintiff at the time of the accident was suffering from defective eyesight which kept him from observing approaching vehicles. Evidence was introduced by the defendants tending to support these allegations.

In our opinion, there was error in the foregoing instruction to the jury. The court pointed out that the jury was not to be concerned with the limitations applicable in overtaking and passing another vehicle as set forth in G.S. §§ 20-149 and 20-150.

The evidence of the driver of the Roberson car was to the effect that the Curtis Candy truck was parked half in and half out of the parking place, on the right-hand side of the street; that the back of the truck extended into the traveled portion of Wilson Avenue. "As I proceeded southward on Wilson Avenue, I was driving on the right-hand side. When this white (Curtis) truck began to back up, I pulled over to the left a little to go around." The record also reveals that at the time of the accident there were no other vehicles being operated in the block in which the accident occurred.

G.S. § 20-149 provides as follows: "(a) The driver of any such vehicle overtaking another vehicle proceeding in the same direction shall pass at least two feet to the left thereof, and shall not again drive to the right side of the highway until safely clear of such overtaken vehicle. This subsection shall not apply when the overtaking and passing is done pursuant to the provisions of G.S. 20-150.1. (b) The driver of an overtaking motor vehicle not within a business or residence district, as herein defined, shall give audible warning with his horn or other warning device before passing or attempting to pass a vehicle proceeding in the same direction, but his failure to do so shall not constitute negligence or contributory negligence per se in any civil action; although the same may be considered with the other facts in the case in determining whether the driver of the overtaking vehicle was guilty of negligence or contributory negligence."

The pertinent part of G.S. § 20-150 reads as follows: "(a) The driver of a vehicle shall not drive to the left side of the center of a highway, in overtaking and passing another vehicle proceeding in the same direction, unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in safety."

We think the evidence supports the view that the accident occurred while the driver of the Roberson car was in the act of passing the Curtis Candy truck, and the evidence reveals no act in connection therewith in violation of the statutes with respect to such attempted passing. The negligence, if any, on the part of the driver of the Roberson car must be determined in light of the plaintiff's presence in the street and whether or not Patsy Carroll used due care to avoid colliding with plaintiff after she observed him or should have observed him in the street. G.S. § 20-174(e).

Assignment of error No. 22 also challenges the correctness of the following portion of the court's instruction to the jury: "I charge you that if the plaintiff, Mr. Bass, crossed South Wilson Avenue at a point other than on a marked crosswalk, that it was his duty under General Statutes § 20-174(a) to yield the right of way to all vehicles upon the roadway, and if you find from the evidence and by its greater weight that he failed to yield the right of way to the defendant Patsy Roberson Carroll, and you find that she had the right of way, then this would be evidence of negligence on the part of the plaintiff, Mr. Bass."

It was error to leave it to the jury to determine whether or not defendant Patsy Carroll had the right of way. The law gave her the right of way. G.S. § 20-174 in pertinent part provides: "(a) Every pedestrian crossing a roadway at any point other than within a marked cross-walk or within an unmarked cross-walk at an intersection shall yield the right-of-way to all vehicles upon the roadway. * * * (c) Between adjacent intersections at which traffic control signals are in operation pedestrians shall not cross at any place except in a marked cross-walk."

We deem it unnecessary to discuss the remaining assignments of error since they may not recur on another trial.

New trial.