PARKER, J.
Defendant ’offered evidence. Considering plaintiff’s' evidence in, the light most favorable to him and giving him the benefit of every reasonable inference to' be drawn therefrom, ’and 'Considering so much oif defendant’s evidence as is favorable to him, the count properly rsuibonitted’ the case to the jury, -and defendant’s assignment of error to the eoiurt’is 'denial of his motion for judgment of 'compulsory nonsuit made :af the close of all the evidence is overruled. G.S. 1-183;
Rosser v. Smith, ante,
647, 133 S.E. 2d 499.
Defendant in his answer alleged a conditional plea of contributory negligence 'on plaintiff’s part to bar recovery. Among the various acts of alleged negligence by plaintiff, which defendant avers contributed proximataly to' hi,s injuries, is tire allegation that plaintiff was negligent in operating his bicycle in tire nighttime -and more than a half hour after sunset on Rural- Paved Road #1513 without having his bicycle equipped with a lighted lamp on the front thereof, visible under normal atmospheric conditions from a distance of at least three hundred feet in front oif foils bicycle, and 'without having his bicycle equipped with a reflex mirror or lamp on the rear, exhibiting a red light visible under like conditions -from a distance of at least tro hundred feet to the -rear of such bicycle, in violation of G.S. 20-129 (e).
Plaintiff’is evidence shows that on this occasion ¡his bicycle was not equipped with a lighted lamp on the front thereof When he was struck.
The court in its 'Charge in respect to1 the second issue of contributory negligence of plaintiff 'stated
ipsiséimis verbis
'G.S. 20-129 (e), and immediately thereafter charged the jury as follows, Which appellant assigns as error:
“And so that statute requires that a bicycle when used or operated at night, shall have ia lighted light on .tire front, visible under normal atmospheric conditions, from a distance of at least 300 .feet in front of the bicycle. With respect to that portion, gentlemen, iand I understand it is admitted by plaintiff in his testimony that he had no' lighted lamp upon the front of Iris bicycle, and I instruct you that ¡the provision .respecting ia front lamp on a bicycle, is designed for the benefit of those approaching a 'bicycle from the front, for the protection of the cyclist from such. It does not require a light of such intensity as to render objects visible along the highway -in front of a bicycle, and the violation of the istafcute in respect to 'failing to have a headlight as required by the law, I instruct as <a matter of law would not be a proximate cause of a collision resulting from plaintiff being struck in the rear, as •alleged in this action.”
It is a fundamental principle ¡that the only negligence oif legal importance i® negligence which -proximately causa® or contributes to the injury under judicial investigation.
McNair v. Richardson,
244 N.C. 65, 92 S.E. 2d 459;
Cox v. Freight Lines
and
Matthews v. Freight Lines,
236 N.C. 72, 72 S.E. 2d 25;
Smith v. Whitley,
223 N.C. 534, 27 S.E. 2d 442;
Byrd v. Express Co.,
139 N.C. 273, 51 S.E. 851.
We take judicial notice of the fact that in North Carolina about 8:15 p.m. on 4 June 1961 was within the period of time from a half hour after sunset to a 'half hour before sunrise.
Weavil v. Myers,
243 N.C. 386, 90 S.E. 2d 733; 31 C.J.S., Evidence, p. 700.
Under G.S. 20-38 (ff) of our Motor Vehicles Act, bicycles are “deemed vehicle®, and every rider of a bicycle upon a highway shall be subject to the provisions of this article applicable to> the driver of a vehicle except those which by their nature can have no application.”
Tarrant v. Bottling Co.,
221 N.C. 390, 20 S.E. 2d 565;
Van Dyke v. Atlantic Greyhound Corp.,
218 N.C. 283, 10 S.E. 2d 727.
“The statutes prescribing lighting devices to be used by motor vehicles operating at night (G.S. 20-129 and 129.1) were enacted in the interest of public safety.
S. v. Norris,
242 N.C. 47, 86 S.E. 2d 916. A violation of these statutes constitutes negligence as a -matter of law.”
Scarborough v. Ingram,
256 N.C. 87, 122 S.E. 2d 798.
What is the proximate cause of an injury is ordinarily a question to be determined by the jury as a fact in view of -the attendant circumstances.
Ervin v. Mills Co.,
233 N.C. 415, 64 S.E. 2d 431;
Hoke v. Atlantic Greyhound Corp.,
226 N.C. 692, 40 S.E. 2d 345. When more than ■one legitimate inference can be drawn from the evidence, the question of proximate ea-use is to be determined by the jury.
Lincoln v. R.R.,
207 N.C. 787, 178 S.E. 601. “It is only when the facts are all admitted and only one inference may be drawn from them that the court will declare whether an act w.ais the proximate cause of an injury or not. But that is -rarely the case.”
Conley v. Pearce-Young-Angel
Co., 224 N.C. 211, 29 S.E. 2d 740.
It would seem that the trial judge in giving the 'challenged -part of the charge quoted -above followed
Spence v. Rasmussen,
190 Ore. 662, 226 P. 2d 819. This w-ais an action to recover damages for death of a bicyclist when an overtaking truck 'collided with hi® bicycle. The collision occurred 26 January 1948 about the hour of 6:10 a.m. in Jackson County, Oregon, on U. S. Highway 99. The sun rose -at 7:20 a.m. that day. The weather wais clear and the pavement wais dry. There -was evidence the bicycle was equipped with an -ordinary bicycle front lamp (electric) and with a red reflector on the rear, bu-t that the front lamp on the bicycle was not burning. Section 115-368, O. C. L. A., a« amend-
ad by eh. 16, Oregon Laws 1947, provided: “(b) * * * Every bicycle shall be equipped with a lamp on. the front exhibiting a white light visible from ia diistamice of at least 500 feat to. the front of such bicycle, and with a red reflector on the (pear, amid of such size or characteristics and so mounted as to be visible at night from all distances within 300 feet to 50 feet from the rear of such bicycle. A red light visible from a distance of 500 feet to the rear may be used in addition to the rear reflector.” The Court said:
“This provision respecting a front lamp on a bicycle is designed for the benefit of those approaching a bicycle
-¡rom the front
and for the protection of ithe bicyclist from such. It in no way requires ■a light of such intensity as to render objects visible along the 'highway in front of the bicycle. The red reflector is designed to protect the bicyclist from vehicles approaching
from the rear
.and to give notice to- such vehicles of the presence of the bicycle ahead. The installation of a red
light
on the rear of a bicycle is permissive and not mandatory. The statute 'contemplates that the i'ed reflector on the rear of the bicycle will show up in the rays of light from the front lamps on the motor vehicle approaching from the rear in time to. prevent mishap.
“The requirements of 'the statute respecting front laanps on
motor vehicles
Free access — add to your briefcase to read the full text and ask questions with AI
PARKER, J.
Defendant ’offered evidence. Considering plaintiff’s' evidence in, the light most favorable to him and giving him the benefit of every reasonable inference to' be drawn therefrom, ’and 'Considering so much oif defendant’s evidence as is favorable to him, the count properly rsuibonitted’ the case to the jury, -and defendant’s assignment of error to the eoiurt’is 'denial of his motion for judgment of 'compulsory nonsuit made :af the close of all the evidence is overruled. G.S. 1-183;
Rosser v. Smith, ante,
647, 133 S.E. 2d 499.
Defendant in his answer alleged a conditional plea of contributory negligence 'on plaintiff’s part to bar recovery. Among the various acts of alleged negligence by plaintiff, which defendant avers contributed proximataly to' hi,s injuries, is tire allegation that plaintiff was negligent in operating his bicycle in tire nighttime -and more than a half hour after sunset on Rural- Paved Road #1513 without having his bicycle equipped with a lighted lamp on the front thereof, visible under normal atmospheric conditions from a distance of at least three hundred feet in front oif foils bicycle, and 'without having his bicycle equipped with a reflex mirror or lamp on the rear, exhibiting a red light visible under like conditions -from a distance of at least tro hundred feet to the -rear of such bicycle, in violation of G.S. 20-129 (e).
Plaintiff’is evidence shows that on this occasion ¡his bicycle was not equipped with a lighted lamp on the front thereof When he was struck.
The court in its 'Charge in respect to1 the second issue of contributory negligence of plaintiff 'stated
ipsiséimis verbis
'G.S. 20-129 (e), and immediately thereafter charged the jury as follows, Which appellant assigns as error:
“And so that statute requires that a bicycle when used or operated at night, shall have ia lighted light on .tire front, visible under normal atmospheric conditions, from a distance of at least 300 .feet in front of the bicycle. With respect to that portion, gentlemen, iand I understand it is admitted by plaintiff in his testimony that he had no' lighted lamp upon the front of Iris bicycle, and I instruct you that ¡the provision .respecting ia front lamp on a bicycle, is designed for the benefit of those approaching a 'bicycle from the front, for the protection of the cyclist from such. It does not require a light of such intensity as to render objects visible along the highway -in front of a bicycle, and the violation of the istafcute in respect to 'failing to have a headlight as required by the law, I instruct as <a matter of law would not be a proximate cause of a collision resulting from plaintiff being struck in the rear, as •alleged in this action.”
It is a fundamental principle ¡that the only negligence oif legal importance i® negligence which -proximately causa® or contributes to the injury under judicial investigation.
McNair v. Richardson,
244 N.C. 65, 92 S.E. 2d 459;
Cox v. Freight Lines
and
Matthews v. Freight Lines,
236 N.C. 72, 72 S.E. 2d 25;
Smith v. Whitley,
223 N.C. 534, 27 S.E. 2d 442;
Byrd v. Express Co.,
139 N.C. 273, 51 S.E. 851.
We take judicial notice of the fact that in North Carolina about 8:15 p.m. on 4 June 1961 was within the period of time from a half hour after sunset to a 'half hour before sunrise.
Weavil v. Myers,
243 N.C. 386, 90 S.E. 2d 733; 31 C.J.S., Evidence, p. 700.
Under G.S. 20-38 (ff) of our Motor Vehicles Act, bicycles are “deemed vehicle®, and every rider of a bicycle upon a highway shall be subject to the provisions of this article applicable to> the driver of a vehicle except those which by their nature can have no application.”
Tarrant v. Bottling Co.,
221 N.C. 390, 20 S.E. 2d 565;
Van Dyke v. Atlantic Greyhound Corp.,
218 N.C. 283, 10 S.E. 2d 727.
“The statutes prescribing lighting devices to be used by motor vehicles operating at night (G.S. 20-129 and 129.1) were enacted in the interest of public safety.
S. v. Norris,
242 N.C. 47, 86 S.E. 2d 916. A violation of these statutes constitutes negligence as a -matter of law.”
Scarborough v. Ingram,
256 N.C. 87, 122 S.E. 2d 798.
What is the proximate cause of an injury is ordinarily a question to be determined by the jury as a fact in view of -the attendant circumstances.
Ervin v. Mills Co.,
233 N.C. 415, 64 S.E. 2d 431;
Hoke v. Atlantic Greyhound Corp.,
226 N.C. 692, 40 S.E. 2d 345. When more than ■one legitimate inference can be drawn from the evidence, the question of proximate ea-use is to be determined by the jury.
Lincoln v. R.R.,
207 N.C. 787, 178 S.E. 601. “It is only when the facts are all admitted and only one inference may be drawn from them that the court will declare whether an act w.ais the proximate cause of an injury or not. But that is -rarely the case.”
Conley v. Pearce-Young-Angel
Co., 224 N.C. 211, 29 S.E. 2d 740.
It would seem that the trial judge in giving the 'challenged -part of the charge quoted -above followed
Spence v. Rasmussen,
190 Ore. 662, 226 P. 2d 819. This w-ais an action to recover damages for death of a bicyclist when an overtaking truck 'collided with hi® bicycle. The collision occurred 26 January 1948 about the hour of 6:10 a.m. in Jackson County, Oregon, on U. S. Highway 99. The sun rose -at 7:20 a.m. that day. The weather wais clear and the pavement wais dry. There -was evidence the bicycle was equipped with an -ordinary bicycle front lamp (electric) and with a red reflector on the rear, bu-t that the front lamp on the bicycle was not burning. Section 115-368, O. C. L. A., a« amend-
ad by eh. 16, Oregon Laws 1947, provided: “(b) * * * Every bicycle shall be equipped with a lamp on. the front exhibiting a white light visible from ia diistamice of at least 500 feat to. the front of such bicycle, and with a red reflector on the (pear, amid of such size or characteristics and so mounted as to be visible at night from all distances within 300 feet to 50 feet from the rear of such bicycle. A red light visible from a distance of 500 feet to the rear may be used in addition to the rear reflector.” The Court said:
“This provision respecting a front lamp on a bicycle is designed for the benefit of those approaching a bicycle
-¡rom the front
and for the protection of ithe bicyclist from such. It in no way requires ■a light of such intensity as to render objects visible along the 'highway in front of the bicycle. The red reflector is designed to protect the bicyclist from vehicles approaching
from the rear
.and to give notice to- such vehicles of the presence of the bicycle ahead. The installation of a red
light
on the rear of a bicycle is permissive and not mandatory. The statute 'contemplates that the i'ed reflector on the rear of the bicycle will show up in the rays of light from the front lamps on the motor vehicle approaching from the rear in time to. prevent mishap.
“The requirements of 'the statute respecting front laanps on
motor vehicles
have entirely different purposes than the statute respecting bicycle lamps. The front lights on motor vehicles are designed to render visible not only the road ahead and each side thereof, but also persons 'and- objects thereon in the path of the vehicle.
-x- x*
“There is no evidence in this record that if the front lamp on this bicycle hiad been burning it could have been better seen by ■one operating a motor vehicle from the rear, nor is there any evidence from which such inference might reasonably be drawn. X* X- *
“Ordinarily, the question of proximate cause must be submitted to the jury for determination, but where, as here, the facts respecting the front lamp on the bicycle are not disputed, we may, and do, hold as a matter of law that the violation of the statute in question by decedent was not a proximate cause nor contributing proximate cause oif the accident in. question.”
In the case of
Flynn v. Kumamoto,
22 Cal. App. 2d 607, 72 P. 2d 248, 249, the 'California Court of Appeals construed a 'statute of that
Sitíate respecting front lamp's on bicycles of 'almost i'demtiical language to that found in the statute of North Carolina. In that ¡ease -plaintiff, a minor -age ¡about fourteen years, was riding his bicycle on the highway when it wars dark, and tied to his bicycle wais another bicycle ridden ■by his brother, -a -minor fifteen years -old. The two- bicycles were separated by a -distance of aibo-ut five feet. Both bicycles were equipped with red reflectors, .although neither had .headlights. Plaintiff was struck from the rear ¡by defendants’ sedan automobile and injured. Defendants contend .plaintiff w-as- guilty ¡of contributory negligence as -a matter of law in riding ¡an -unlighted -bicycle upon a public highway at night. Respecting thi-s contention, the California Court, after quoting -the statute above referred to, said:
“Inasmuch as ¡the -bicycles were equipped with red reflectors, ■which was not disputed, and were visible at a. distance of 200 feet when directly in front of a motor vehicle -as was established by evidence, it -is immaterial in -this ¡case that such ¡bicycles were not equipped w-ith a headlight, as the absence of that light did not p-roximately contribute to the -cause of the accident, the absence of such a light not in >any manner contributing to the accident.
Greeneich v. Knoll,
73 Cal. App. 1, 238 P. 163.”
Plaintiff’s evidence, in fact ¡ail the evidence, is that plaintiff -was riding his bicycle on the highway at night without a 1-amp of any kind on the front thereof. This was a violation of G.S. 20-129 (e), and was negligence
per se.
G.S. 20-129 (e) requires that “every bicycle shall be equipped with a lighted lamp on the front thereof, visible under normal atmospheric conditions from a -distance of .at least three hundred feet in front of such bicycle, * * * when used at night.” This is entirely different from tibe requirement for mo-tor vehicles, when used at ¡night as set forth in G.S. 20-131 (a): “The head lamps ¡of -motor vehicles shall -be so constructed, arranged, and adjusted that, except as provided in subsection (c) of this section, they -will at all times mentioned in § 20-129, and under normal ¡atmospheric -conditions ¡and on -a level road, produce a ¡driving light sufficient to- render clearly discernible -a person two hundred feet ahead * *
Plaintiff’s evidence tends to dhow that he -had a reflex mirror on the rear of hi-s bicycle in conformity with the requirements of G.S. 20-129 (e). There is no evidence in ¡the record that if plaintiff’s ¡bicycle had been equipped with “a lighted lamp on the front thereof,” as required -by G.S. 20-129 (e), it would have been visible at -all to a person approaching the bicycle with an automobile from the rear. “In the abs-
emoe oí some probable causal connection, bald negligence
per se
can raise no presumption of proximate cause: it may be wholly innocent.”
Tendoy v. West,
51 Idaho 679, 9 P. 2d 1026. “Proximate cause is an inference of fact, to be drawn from other facts and circumstances. If the evidence be so slight as not reasonably to warrant the inference, the count will not leave the matter to the speculation of the jury.”
Conley v. Pearce-Young-Angel Co., supra; Brown v. Kinsey,
81 N.C. 245. Ini our opinion, and we so hold, the 'admitted fact that plaintiff’s bicycle had no* lighted light on the front thereof, considered in connection with the fact that there is no evidence in the record that if the bicycle had been equipped with a lighted lamp* in accord with the statutory requirement, it would have been visible at all to* a person ■approaching the bicycle with an 'automobile from .the -rear, permits only one legitimate ■inference to be drawn, and that *is that the absence of a lighted lamp .on plaintiff’s bicycle was not a proximate cause or a contributing proximate cause of .pteintiff’s injuries. To. hold otherwise “would unloose a jury to wander aimlessly in the fields of speculation.”
Poovey v. Sugar Co.,
191 N.C. 722, 133 S.E. 12. Under the facts disclosed :by the record in the instant case, -the assignment of error to the challenged .part of the charge quoted above -is overruled.
The jury, under the application of well-settl'ed principles of law, resolved the issues .of fact /against tire defendant. A careful examination of 'all the other assignments of error discloses no new question or feature requiring extended discussion.
This appears in the charge of tire court:
“The parties have agreed that the question of responsibility of Hazed Crilbb, owner of the automobile 'driven by the defendant, Bronford Lowry, should not be submitted to you, her responsibility, if -any, .being derivative or rising out of the relation or connection, if 'any, between her and Bronford Lowry and you 'are not concerned with separate responsibility of Hazel Gribb at this time.”
The record does not disclose what judicial determination, if any, has been made in respect ,to* the responsibility of Hazel Gribb. Neither reversible nor prejudicial error has been made to appear. The verdict and judgment against Bronford' Lowry will be upheld.
No error.