Grant v. Royal

108 S.E.2d 627, 250 N.C. 366, 1959 N.C. LEXIS 660

Opinions

HiggiNS, J.

The record -in this case leaves the impression that two estimable ladies, bor-n in the horse and buggy days, failed fully to appreciate the speed of present day -automobile traffic and the dangers incident -thereto. On foot, they -attempted to cross -a f-our-lane street •at .a place where the authorities had/ -made no provision for such crossing. Darkness, rain, wind, fog, clothing and umbrella blending with the color of the street surface, left the defendant insufficient time to •avoid them -aifter he could have discovered their intention to continue across -his lane of traffic. They bad ©bopped or hesitated in a place of safety from his intended movement. Even so, he stopped after merely bumping them without running over them.

Plaintiff and her witness were crossing from the unlighted side of the street .at a place where the defendant had a right to assume and to act on (the -assumption that -pedestrians would recognize hi-s right of wtay and not obstruct it. Garmon v. Thomas, 241 N.C. 412, 85 S.E. 2d 589; Tysinger v. Dairy Products, 225 N.C. 717, 36 S.E. 2d 246; Mitchell v. Melts, 220 N.C. 793, 18 S.E. 2d 406. (See North Carolina Index, Vol. 1, pp. 264, 265, for full citation of cases.) N-o presumption of negligence arises from the mere fact there has been an accident upd .an injury. Fleming v. Twiggs, 244 N.C. 666, 94 S.E. 2d 821; Merrell v. Kindley, 244 N.C. 118, 92 S.E. 2d 671; Mills v. Moore, 219 N.C. 25, 12 S.E. 2d 661.

In this case there is no evidence of speed. All the evidence indicates the defendant had only an instant in which to take evasive action after he could have observed the ladies suddenly decided to hurry across the two lanes for north-bound .traffic. The wonder-is that complete success to .avoid the accident failed by so narrow a margin.

The judgment of involuntary nonsuit in the court below is

Affirmed.