Jenkins v. Thomas

133 S.E.2d 694, 260 N.C. 768, 1963 N.C. LEXIS 809

• Court: Supreme Court of North Carolina
• Decided: December 19, 1963
• Docket: 167
• Status: Published

Opinion

PER Cukiam.

Plaintiff’s evidence is sufficient to establish these facts: The collision occurred about 9:00 p.m. when he was crossing Chester Street, U.'S. Highway 321, in Gastonia. Chaster Street runs north and south. It is approximately forty-five feet wide, paved, with paved- sidewalks on each side. Al-liison Street runs east and west. It intersects the -eastern .side line .of Chester but does not cross that istreet. There are dirt walkways on each .side of Al-liison. About one hundred feet south of the intersection of Chester -amid Allison is a dirt path frequently used by pedestrians in going from Chester to Boyce Street which is west of and parallel to- Chester. Plaintiff walked west-wardly along Allison untill he came to- Chester. He then turned on Chaster until he came to a “No Parking” sign near the southeast corner of -the intersection .of Chester and Allis-on. There he turned isouthwe-stw'ardly to cross Chaster, intending to' follow the path to Boyce Street. Before leaving the sidewalk, he looked. He saw no motor vehicle going -south, but did see a vehicle going north. It was traveling forty to forty-five m.p.h. He waited for .that vehicle to pass. He then stepped in the street, -crossing it diagonally in a isouthwestwardly direction, intending to enter the path. He w-a-s struck ,by defendants’ vehicle when -about three or four steps from the western curb of Chester Street and one hundred feet or thereabouts south of the intersection. Defendants were traveling south at a speed of twenty-five m.p.h. The maximum speed limit at the point where plaintiff was injured was 35 m.p.h. The highway was -straight in each direction for three hundred yards or thereabouts. Defendants, going south, were going uphill. (The grade is not disclosed.) Plaintiff saw the bright lights of defendants’ vehicle juist a flash of an eye before he was struck.

Where Chester and Alliso-n join is, by statutory definition, an intersection. G.S. 20-38(1). Even though there was no marked crosswalk 'a-t that point, a pedestrian crossing there had the right of way -over a motorist traversing the intersection. G.S. 20-174(a). Plaintiff elected no-t to cross at a point where he had the -right of w-ay, but -elected to cross at a point where the motorist had the right -o-f way. Defendants, having the right of way, 'had the right to assume, until put on notice to the contrary, that the pedestrian- would obey the law and yield the right o-f way. The mere fact that the pedestrian is oblivious to danger does not impose a duty on the motorist to yield -the right of way. That duty arises when, and only -when, the motorist sees, o-r in the exercise of reasonable care should see, that .the pedestrian is not aware of the approaching -danger -and for that -reason will continue to- expose himself to peril. Rosser, Admr. v. Smith, ante, 647, Griffin v. Pancoast, 257 N.C. 52, 125 S.E. 2d 310; Garmon v. Thomas, 241 N.C. 412, 85 S.E. 2d 589.

Plaintiff failed to carry the burden o-f showing negligence imposing liability on defendants.

Affirmed.