BARBARA ANN CULLER,
Plaintiff,
v
.
STACEY POTEAT HAMLETT, HOUSTON GWYNN HAMLETT, JR., and ANTHONY
DALE GREEN,
Defendants.
George B. Daniel, P.A., by John M. Thomas, for plaintiff-
appellant.
Burton & Sue, L.L.P., by Walter K. Burton, for defendants-
appellee Hamlett.
Teague, Rotenstrich and Stanaland, L.L.P. by Stephen G.
Teague, for defendant-appellee Green.
BIGGS, Judge.
Plaintiff appeals the trial court's order granting directed
verdict in favor of defendants, Stacy and Houston Hamlett, in an
action for personal injuries. In addition to the Hamletts,
plaintiff sued a third defendant, Anthony Dale Green. The trial
against defendant, Green, was severed from the trial against the
Hamletts and reported in a separate opinion. For the reasons
herein, we affirm the trial court's grant of directed verdict in
favor of the Hamletts.
The evidence at trial tended to show the following: On 30
June 1993, at approximately 3:00 a.m., plaintiff left work inGreensboro, North Carolina and started driving home to Providence,
North Carolina. Plaintiff described the traveling conditions as
slightly foggy and dark. She was driving a 1984 Ford Escort that
she planned to purchase from a relative of co-defendant, Anthony
Green. Plaintiff explained that she had not had any past
mechanical problems with the vehicle; however, while driving
easterly on the highway, plaintiff began to experience problems
when the vehicle's stick shift kept popping out of gear. After
crossing Highway 86 onto Park Springs Road, the vehicle became
disabled forcing her to stop on the side of the two-lane road.
Shortly thereafter, plaintiff saw a vehicle approaching from
the opposite direction and recognized the vehicle as belonging to
Anthony Green. Green, who was traveling westerly on the highway,
slowed down, pulled his vehicle onto the shoulder of the roadway
and parked it partially on the roadway in the lane opposite of
plaintiff's disabled vehicle. Plaintiff emerged from her car and
walked across the roadway to Green's car, while he remained seated
with the driver's door open and his engine running.
While engaged in conversation with Green, plaintiff saw the
headlights of defendants' vehicle from approximately 300 yards
away. The defendants, like Green, were traveling in a westerly
direction on the roadway; Stacey Hamlett was driving. After
telling Green that a car was approaching, plaintiff then turned
away and began to walk back across the roadway towards her vehicle.
Defendants' vehicle collided first with Green's vehicle, then
struck and injured plaintiff, before colliding with plaintiff'svehicle. Plaintiff sustained a fractured left femur which required
surgery.
Plaintiff filed an action on 30 October 1998, against
defendants and Green for the injuries she suffered when she was
struck while crossing the roadway. More specifically, plaintiff
alleges that defendant, Stacey Hamlett, was negligent in the
operation of her vehicle. Defendants filed a reply denying any
negligence and alleged contributory negligence of plaintiff.
Plaintiff then filed a reply alleging last clear chance. The trial
involving defendants was conducted before a jury.
On 8 March 2000, after plaintiff rested her case, the trial
court entered an order granting a directed verdict in favor of
defendants, finding that the plaintiff was contributorily negligent
as a matter of law and further finding the doctrine of last clear
chance inapplicable. From the entry of the directed verdict and
dismissal of her action, plaintiff gave notice of appeal to this
Court.
This Court noted in Wolfe that a plaintiff's failure to yield
a right-of-way in violation of N.C.G.S. § 20-174(a) is not
contributory negligence per se, but that such failure is 'evidence
of negligence to be considered with other evidence in the case in
determining whether the plaintiff is chargeable with negligence
which proximately caused or contributed to his injury.' Wolfe at
186, 398 S.E.2d at 916 (quoting Dendy v. Watkins, 288 N.C. 447,
456, 219 S.E.2d 214, 220 (1975)). Even though failing to yield
the right-of-way to an automobile is not contributory negligence
per se, it may be contributory negligence as a matter of law. Id.
at 186, 398 S.E.2d at 916 (citing Meadows v. Lawrence, 75 N.C. App.
86, 330 S.E.2d 47 (1985), aff'd, 315 N.C. 383, 337 S.E.2d 851
(1986)). The trial court must direct a verdict for the defendants
when all the evidence so clearly establishes [plaintiff's] failure
to yield the right of way as one of the proximate causes of his
injuries that no other reasonable conclusion is possible. Ragland
v. Moore, 299 N.C. 360, 364, 261 S.E.2d 666, 668 (1980) (quoting
Blake v. Mallard, 262 N.C. 62, 65, 136 S.E.2d 214, 216 (1964)); see
also, e.g. Brooks v. Francis, 57 N.C. App. 556, 291 S.E.2d 889
(1982) (judgment as a matter of law proper where uncontroverted
evidence shows that plaintiff's failure to use due care was at
least one proximate cause of plaintiff's injuries).
In Meadows v. Lawrence, this Court held that the plaintiff wascontributorily negligent as a matter of law where the evidence
showed that the plaintiff's negligence in crossing a highway was at
least one proximate cause of the accident. 75 N.C. App. at 90, 330
S.E.2d at 50. In that case, the evidence in the light most
favorable to the plaintiff revealed the following: that plaintiff
was standing in the defendant's highway lane of travel; that the
defendant, with his vehicle headlights burning, turned onto the
highway at a distance at least 100 feet from the plaintiff; and
that the road was straight and visibility unobstructed. Id.
This Court in Meadows found significant that between the time
[defendants'] car turned onto the highway and the time of the
collision, [plaintiff] took one or two steps towards the center of
the road. Id. Noting that it was the plaintiff's duty to look
for approaching traffic before she attempted to cross the highway,
this Court stated:
The courts of this State have, on numerous
occasions, applied the foregoing standard of
due care when the plaintiff was struck by a
vehicle while crossing a road at night outside
a crosswalk. If the road is straight,
visibility unobstructed, the weather clear,
and the headlights of the vehicle in use, a
plaintiff's failure to see and avoid
defendant's vehicle will consistently be
deemed contributory negligence as a matter of
law.
Id. at 89-90, 330 S.E.2d at 50.
In Price v. Miller, 271 N.C. 690, 696, 157 S.E.2d 347, 351-352
(1967), our Supreme Court held that the plaintiff's intestate was
contributorily negligent as a matter of law where the evidenceshowed that the decedent was crossing the road at night and without
the benefit of a crosswalk. The defendant's vehicle was
approaching the decedent at a rate of 60 miles per hour in a 55
mile per hour zone, on a straight stretch of road, and with the
vehicle headlights shining. Price, 271 N.C. at 696, 157 S.E.2d at
350. In holding that any liability for defendant's negligence was
precluded by the plaintiff's own negligence, our Supreme Court
stated in Price:
If defendant were negligent in not seeing
plaintiff's intestate, who was dressed in dark
clothes, in whatever length of time he might
have been in the vision of her headlights,
then plaintiff's intestate must certainly have
been negligent in not seeing defendant's
vehicle as it approached, with lights burning,
along the straight and unobstructed highway.
We must conclude that plaintiff's intestate
saw defendant's automobile approaching and
decided to take a chance of getting across the
road ahead of it, or in the alternative, that
he not only failed to yield the right of way
to defendant's automobile, but by complete
inattention started across the highway without
looking. In any event . . . plaintiff's
intestate's negligence was at least a
proximate cause of his death.
Id.
In the case sub judice, we hold that the evidence establishes
that plaintiff's own negligence was at least one proximate cause of
her injuries. The plaintiff's own testimony reveals the following:
while talking with defendant Green, plaintiff saw headlights from
defendant Hamletts' car approaching from approximately 300 yards
away; that even though she knew she was in an unsafe position
standing in the roadway, she walked back across the road to hercar; that nothing prevented her from running or stepping quickly
to her car nor did anything prevent her from moving to the other
side of Green's car away from the roadway; there was nothing to
prevent her from keeping a continuous lookout as she crossed the
roadway but she failed to do so; she knew her car and defendant
Green's car were blocking part of their respective lanes of travel;
and that visibility was poor in that it was dark and foggy. Our
Supreme Court in Anderson v. Carter, stated the following rule
regarding pedestrians:
Ordinary care surely requires a . . . man,
under no disability, who observes that he is
in the path of an automobile approaching. . .
to do more for his own protection than merely
walk at the same pace across the path of the
automobile . . . ordinary care requires the
man to jump or run from the path of danger,
even though there may be some risk or loss of
dignity in that process.
272 N.C. 426, 431, 158 S.E.2d 607, 611 (1968).
Plaintiff contends that she assumed that Mrs. Hamlett was
going to stop and not collide with the automobile and that she
assumed that Mrs. Hamlett was not going to cross over the center
line of the highway and attempt to drive between the two
automobiles. This Court has held that the existence of
contributory negligence does not depend on the injured party's
subjective appreciation of the danger; rather the standard of
ordinary care is an objective one -- the care an ordinarily prudent
person would exercise under the same or similar circumstances to
avoid injury. William v. Odell, 90 N.C. App. 699, 702, 370 S.E.2d
62, 64 (1988). Moreover, we need not discuss whether any or all ofthe defendants were negligent in that, under the law of this state,
if plaintiff's own negligence is one proximate cause of her own
injury, she is precluded from recovery irrespective of the acts of
others.
We conclude as did the trial court that the record is replete
with mostly uncontradicted evidence of plaintiff's own contributory
negligence. Accordingly, we hold that plaintiff was
contributorily negligent as a matter of law and the trial court did
not err in directing a verdict in favor of defendant on that issue.
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