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JAMES EDD LIGON, JR., Plaintiff, v. MATTHEW ALLEN STRICKLAND and
GERALD ALLEN STRICKLAND, Defendants
1. Motor Vehicles_crossing center line and striking pedestrian_directed verdict denied
A directed verdict for defendants was correctly denied in a negligence action arising from a pedestrian being struck at night by an automobile. The evidence permits an inference that defendant driver was negligent in crossing the center line and completely leaving the road to avoid a roaming black dog.
2. Motor Vehicles_pedestrian struck by automobile_contributory negligence
The trial court erred by not submitting contributory negligence to the jury where there was evidence that plaintiff was walking along a road at night, intoxicated, and in the dark clothes, and that he was struck in the road.
3. Motor Vehicles_instructions_sudden emergency_swerving to avoid black dog
In a case remanded on other grounds, the trial court's modification of the pattern jury instruction on sudden emergency was unlikely to have confused the jury in a negligence action where defendant allegedly swerved his automobile to miss an animal and hit plaintiff, who was walking on the opposite side of the road. However, on remand the court was urged to take care that the sudden emergency instruction focuses on whether the driver was suddenly and unexpectedly confronted with imminent danger to himself or others.
Clarke K. Wittstruck for plaintiff-appellee.
Cogburn, Goosmann, Brazil & Rose, P.A., by Andrew J. Santaniello, for defendants-appellants.
Defendants Matthew Allen Strickland and Gerald Allen Strickland appeal from a verdict in favor of plaintiff James Edd Ligon, Jr. Ligon contended and the jury found that MatthewStrickland ("Strickland"), who was driving the car of his father Gerald Strickland, swerved across a road and struck Ligon as he was walking along the opposite side of the road. Defendants argue on appeal that the trial court erred (1) in denying their motion for a directed verdict on the issue of negligence and (2) in not instructing the jury on the issue of contributory negligence. Because the evidence is undisputed that Strickland crossed the center line and Ligon offered sufficient evidence to permit a reasonable juror to find that Strickland struck Ligon, the trial court properly denied defendants' motion for a directed verdict. We agree with defendants, however, that when the evidence is viewed in the light most favorable to them, the record contains sufficient evidence to warrant submission of the issue of contributory negligence to the jury. Defendants are, therefore, entitled to a new trial.
(1) A vehicle shall be driven as nearly
as practicable entirely within a
single lane and shall not be moved
from such lane until the driver has
first ascertained that such movement
can be made with safety.
As this Court has previously stated, "[o]ur Courts have consistently held that the violation of this section constitutesnegligence per se, and when it is the proximate cause of injury or damage, such violation is actionable negligence." Sessoms v. Roberson, 47 N.C. App. 573, 579, 268 S.E.2d 24, 28 (1980). See also Anderson v. Webb, 267 N.C. 745, 749, 148 S.E.2d 846, 849 (1966) ("When a plaintiff suing to recover damages for injuries sustained in a collision offers evidence tending to show that the collision occurred when the defendant was driving to his left of the center of the highway, such evidence makes out a prima facie case of actionable negligence.").
A defendant may, as defendants do in this case, present evidence "that [defendant] was driving on the wrong side of the road for reasons other than his own negligence, but, in such a case, such showing by the defendant serves merely to raise an issue of credibility for the jury to resolve." Sessoms, 47 N.C. App. at 579, 268 S.E.2d at 28. Thus, this Court has held that a motion for a directed verdict should be denied when the plaintiff's evidence established that the defendant drove left of center even though the defendant offered evidence that he skidded due to ice. Brewer v. Majors, 48 N.C. App. 202, 205, 268 S.E.2d 229, 230-31, disc. review denied, 301 N.C. 400, 273 S.E.2d 445 (1980). See also Anderson, 267 N.C. at 749, 148 S.E.2d at 849 (reversing nonsuit when the evidence indicated that the defendant had crossed the center line while skidding on wet pavement even though no one survived the accident and there were no eyewitnesses to testify that the skidding was due to negligence); Sessoms, 47 N.C. App. at 579, 268 S.E.2d at 28 (reversing grant of directed verdict when thedefendant conceded that he crossed the center line, but claimed he did so to avoid hitting the plaintiff since "this evidence alone . . . is sufficient to require the submission of this case to the jury").
Here, defendants contend that Strickland crossed the center line to avoid an animal, identified as possibly being a local black dog who tended to run loose in the neighborhood. Ligon offered evidence that he noticed the dog, but that the dog was in a yard up a hill right before the collision; no one else saw a dog in the area after the collision. Strickland's testimony was vague: he said "something came out in front of [him] in the middle of the road"; he did not recall it darting, but rather it was simply "in the road"; he could only "guess" where he first saw the animal; and he could not recall from which direction the animal had come, although he would "guess" that it came from the right side. He said that his recollection was "very vague" and he was having a "hard time remembering." Thus, there is a question for the jury as to whether an animal was in the road that caused Strickland to cross over the center line.
Even if the presence of the animal were undisputed, plaintiff also offered evidence that Strickland traveled 20 feet across the center line from his legal lane of travel and continued to the fence. Further, there is no evidence suggesting that Strickland attempted to brake or slow down to avoid the animal. Strickland testified:
Q And you saw the animal in your lights and you swerved across the roadway to the left,and that you swerved all the way across the roadway to the left across this section here and hit this fence. (Indicating) Is that your testimony?
Q And then after you hit the fence your car
kept going and righted itself and you ended up
back on the roadway here? (Indicating)
A I don't know if it righted itself.
Q That's what I was confused about. You said
you came back to and you were on the road.
A I hit the fence and I must have corrected
it. I don't see how it would have righted
itself up on the road. The next thing I
remember, I was on the road.
He later confirmed that he was traveling 35 to 40 miles per hour,
hit the fence with "[m]ore of a sidewswipe and [kept] going." He
stated: "I never stopped." According to Strickland, once he "got
back control" or "gained control," he was again on the road. With
respect to Ligon, he testified: "I never saw him." Ligon, however,
presented evidence that it was a clear, moonlit night, and he was
standing next to the road.
As this Court explained in Brewer:
[T]he question to be resolved by the jury is not simply whether defendants' car skidded, but whether [the] defendant [driver] was in the wrong lane, and if so, whether he was there through no fault of his own. It cannot be said that the skidding of the defendants' vehicle immediately preceding the collision establishes a lack of any negligence on [the driver's] part, as a matter of law. It was not only [the driver's] duty to drive in the right-hand lane, but it was also his duty to keep his vehicle under proper control so as to avoid injury to others.
Brewer, 48 N.C. App. at 205, 268 S.E.2d at 230-31. Plaintiff's evidence in this case, when viewed in the light most favorable to plaintiff, is sufficient to allow a jury to find that Strickland was negligent in failing to keep his car under control _ even if he needed to avoid an animal _ and in failing to keep a proper lookout. See Troy v. Todd, 68 N.C. App. 63, 66, 313 S.E.2d 896, 898 (1984) (reversing directed verdict when the defendant struck a person walking on the side of the road at night and in dark clothes because "the failure of a motorist to see a person in or upon a roadway at night before striking him constitutes some evidence of negligence"); Sessoms, 47 N.C. App. at 580, 268 S.E.2d at 28 (holding that even though the defendant claimed he crossed the center line to avoid the plaintiff, the evidence permitted an inference that the defendant failed to exercise due care to avoid hitting the plaintiff in that he failed to keep a proper lookout or keep his car under proper control).
Defendants also argue that the evidence is merely speculative that Strickland, as opposed to someone else, struck Ligon. Strickland, however, admitted that Ligon was found entangled in the fence at the precise point where he struck the fence. In addition, the timing of his collision with the fence corresponds with the timing of Ligon being struck by a vehicle from behind. It is not speculation but rather a reasonable inference that only one car during the time frame of 12:30 to 1:00 a.m. ran off the road at the particular spot where Ligon was standing and struck the fence. Further, the state highway patrol trooper's report states thatStrickland struck Ligon. While defendants objected to the trial court's admission of the report, they have not challenged that ruling on appeal. This evidence, when viewed in the light most favorable to Ligon, was sufficient to allow a reasonable juror to disbelieve defendants' two vehicle theory and find that Strickland struck Ligon.
Defendants rely upon Thompson v. Coble, 15 N.C. App. 231, 189 S.E.2d 500, cert. denied, 281 N.C. 763, 191 S.E.2d 360 (1972) to support their argument that a directed verdict should have been granted. In Thompson, the plaintiff's evidence showed that the defendant was driving in the center of her lane with her lights on when she heard a noise. Id. at 232, 189 S.E.2d at 501. The defendant knew that she had hit something, but had not seen anything prior to hearing the noise. Id. Subsequently, using a flashlight, she and her husband found an injured man in a ditch. Id. This Court held that a directed verdict was appropriate because "[t]he jury would have to engage in pure speculation of how deceased was injured." Id. Similarly, in Whitson v. Frances, 240 N.C. 733, 738, 83 S.E.2d 879, 881 (1954), also cited by defendants, there was no evidence at all that the defendant's vehicle left the road, nor was there evidence as to where the deceased was standing when he was struck.
Unlike Thompson and Whitson, this case involves both (1) evidence permitting an inference that Strickland was negligent by crossing the center line and completely leaving the road and (2) evidence that Ligon, who was on the shoulder on the opposite sideof the road, was injured by being struck from behind by a motor vehicle at generally the same time that Strickland was swerving. The question is only whether it was Strickland's car that struck Ligon. See Walker v. Pless, 11 N.C. App. 198, 199-200, 180 S.E.2d 471, 472 (1971) (reversing grant of directed verdict when the plaintiff was struck from behind by an automobile even though the plaintiff could not testify as to what happened other than that the defendant was at the scene immediately after he was hit). As this Court stated in Sessoms, 47 N.C. App. at 581, 268 S.E.2d at 29, "[w]e cannot imagine a more clearcut case for the twelve."
Judges MCGEE and TYSON concur.
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