Downs v. Watson

173 S.E.2d 556, 8 N.C. App. 13, 1970 N.C. App. LEXIS 1468

• Court: Court of Appeals of North Carolina
• Decided: May 6, 1970
• Docket: No. 7026SC177
• Status: Published

Opinion

BROCK, J.

Appellant’s sole assignment of error is that the trial court erred in granting defendants’ motion for nonsuit made at the close of plaintiff’s evidence.

“It is elementary that upon a motion for judgment of nonsuit the evidence of the plaintiff must be taken to be true and must be considered in the light most favorable to him, resolving all contradictions therein in his favor, and giving him the benefit of every inference in his favor which can reasonably be drawn from it. (Citation omitted.) ... A judgment of nonsuit on the ground of plaintiff’s contributory negligence can be granted only when the plaintiff’s evidence, considered in accordance with the above rule, so clearly establishes his own negligence as one of the proximate causes of his injury that no other reasonable inference or conclusion can be drawn therefrom. (Citations omitted.) Conversely, if the plaintiff’s own evidence does admit of no other reasonable conclusion, the defendant is entitled to have his motion for judgment of non-suit granted and it is error to deny it.” Anderson v. Carter, 272 N.C. 426, 158 S.E. 2d 607.

G.S. 20-173(a) provides:

“Where traffic control signals are not in place or in operation the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection. . .

G.S. 20-174(a) provides:

“Every pedestrian crossing a roadway at a point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.”

The plaintiff’s evidence does not disclose the existence of a marked crosswalk extending across Randolph Road at its intersection with Crescent Avenue. It is therefore necessary to determine whether plaintiff’s intestate was within an unmarked crosswalk when she was struck by the automobile being operated by defendant Watson.

The term “unmarked crosswalk at an intersection”, as used in G.S. 20-173(a) and G.S. 20-174(a), was construed in Anderson v. Carter, supra, a case involving a “T” intersection, to mean that area within an intersection which also lies within the lateral boundaries of a sidewalk projected across the intersection. Plaintiff urgently contends that this rule should be literally applied to the case at bar and that therefore plaintiff’s intestate was in an unmarked crosswalk at the time she was struck by defendant’s vehicle. This contention is untenable. In the present case Crescent Avenue merges with Randolph Road forming what is commonly called a “Y” intersection. Plaintiff’s intestate was crossing the street in the area of the vertex of the “Y” intersection and under the evidence in this case, which is illustrated by the photographs and the diagram, there is no way that plaintiff’s intestate could have been within an unmarked crosswalk.

[2, 4] Plaintiff’s intestate, having attempted to cross Randolph Road at a point other than within a marked or an unmarked crosswalk, she had the duty to yield the right-of-way to all vehicles upon the highway. Without regard to defendants’ negligence, plaintiff’s evidence leads inescapably to the conclusion that plaintiff’s intestate did not use the care for her own safety that an ordinarily prudent person in the same circumstances would have used, and that her failure so to do was one of the proximate causes of her injuries. The judgment of nonsuit was proper.

Affirmed.

BRITT and Graham, JJ., concur.