{ "id": 8523726, "name": "ALBERT A. McNEIL, Administrator of the Estate of CLEMENTINE SMITH McNEIL, Plaintiff v. DEREK KENNETH GARDNER, Defendant", "name_abbreviation": "McNeil v. Gardner", "decision_date": "1991-12-17", "docket_number": "No. 915SC37", "first_page": "692", "last_page": "700", "citations": [ { "type": "official", "cite": "104 N.C. App. 692" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "170 S.E.2d 151", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "158" } ], "opinion_index": 0 }, { "cite": "6 N.C. App. 221", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547548 ], "year": 1969, "pin_cites": [ { "page": "231-32" } ], "opinion_index": 0, "case_paths": [ "/nc-app/6/0221-01" ] }, { "cite": "261 S.E.2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "668" } ], "opinion_index": 0 }, { "cite": "299 N.C. 360", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575106 ], "year": 1980, "pin_cites": [ { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0360-01" ] }, { "cite": "219 S.E.2d 214", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569639 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0447-01" ] }, { "cite": "295 S.E.2d 477", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 741", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573964, 8573997, 8573942, 8573978, 8573919 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0741-03", "/nc/306/0741-05", "/nc/306/0741-02", "/nc/306/0741-04", "/nc/306/0741-01" ] }, { "cite": "292 S.E.2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "734-35" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 197", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524073 ], "year": 1982, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0197-01" ] }, { "cite": "250 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566231 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0382-01" ] }, { "cite": "221 S.E.2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "510" } ], "opinion_index": 0 }, { "cite": "289 N.C. 246", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567809 ], "year": 1976, "pin_cites": [ { "page": "251" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0246-01" ] }, { "cite": "337 S.E.2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 383", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718057 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0383-01" ] }, { "cite": "330 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "75 N.C. App. 86", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524922 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/75/0086-01" ] }, { "cite": "228 S.E.2d 50", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 1 }, { "cite": "30 N.C. App. 674", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555528 ], "year": 1976, "opinion_index": 1, "case_paths": [ "/nc-app/30/0674-01" ] }, { "cite": "302 S.E.2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 1 }, { "cite": "62 N.C. App. 116", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520741 ], "year": 1983, "opinion_index": 1, "case_paths": [ "/nc-app/62/0116-01" ] }, { "cite": "157 S.E.2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1976, "pin_cites": [ { "page": "349" }, { "page": "351" }, { "page": "351" } ], "opinion_index": 1 }, { "cite": "271 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566573 ], "weight": 4, "year": 1976, "pin_cites": [ { "page": "696" }, { "page": "696" } ], "opinion_index": 1, "case_paths": [ "/nc/271/0690-01" ] }, { "cite": "85 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "parenthetical": "plaintiff was negligent in failing to keep a \"timely lookout\"" } ], "opinion_index": 1 }, { "cite": "241 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611586 ], "year": 1955, "pin_cites": [ { "parenthetical": "plaintiff was negligent in failing to keep a \"timely lookout\"" } ], "opinion_index": 1, "case_paths": [ "/nc/241/0412-01" ] }, { "cite": "337 S.E.2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 1 }, { "cite": "315 N.C. 383", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718057 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/nc/315/0383-01" ] }, { "cite": "330 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "50" } ], "opinion_index": 1 }, { "cite": "75 N.C. App. 86", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524922 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "89-90" } ], "opinion_index": 1, "case_paths": [ "/nc-app/75/0086-01" ] } ], "analysis": { "cardinality": 730, "char_count": 16882, "ocr_confidence": 0.769, "pagerank": { "raw": 2.07556580693429e-07, "percentile": 0.7583484596978434 }, "sha256": "9a75233f37f542f7a64ad2ddf4e239add481efc54170c93f6755fbaa2004467b", "simhash": "1:9d0247ea5e3dcc5e", "word_count": 2828 }, "last_updated": "2023-07-14T22:39:04.224888+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge EAGLES dissents.", "Judge Greene concurs." ], "parties": [ "ALBERT A. McNEIL, Administrator of the Estate of CLEMENTINE SMITH McNEIL, Plaintiff v. DEREK KENNETH GARDNER, Defendant" ], "opinions": [ { "text": "HEDRICK, Chief Judge.\nThe trial judge clearly directed a verdict for defendant because he felt that the evidence disclosed plaintiff\u2019s intestate\u2019s negligence as a matter of law. When plaintiff argued to the trial court that the issue of defendant\u2019s negligence and the issue of last clear chance had not been ruled on, the court stated \u201cI am not going to let it go to the jury on that ... I am going to let the Court of Appeals decide this issue before we do that.\u201d\nWe hold the trial judge erred in not submitting to the jury the issues of negligence and contributory negligence. When the evidence is considered in the light most favorable to the plaintiff it is sufficient to raise the issue of negligence on the part of defendant in the operation of his motor vehicle which struck and killed plaintiff\u2019s intestate.\nFrom the evidence, the jury could find that defendant operated^ his motor vehicle without keeping a proper lookout, at an excessive and unlawful rate of speed under the circumstances, that he failed to decrease the speed of his motor vehicle as he approached an intersection, and that he failed to see plaintiff\u2019s intestate and her daughter as they crossed approximately thirty feet of the travel portion of Highway 74 directly in front of his motor vehicle before the accident. From the evidence, the jury could find that one or more of these negligent acts upon the part of defendant was a proximate cause of death of plaintiff\u2019s intestate.\nDefendant, citing and relying on Meadows v. Lawrence, 75 N.C. App. 86, 330 S.E.2d 47, affirmed, 315 N.C. 383, 337 S.E.2d 851 (1985), states in his brief \u201cthe language of the North Carolina Court of Appeals in a case very similar to the factual situation in the case at bar where summary judgment was granted in favor of a defendant on the grounds that the plaintiff\u2019s intestate was contributorily negligent as a matter of law is instructive.\u201d [Emphasis ours]. The facts in Meadows, characterized by defendant as \u201cvery similar\u201d were as follows: The defendant pulled out of a bowling alley parking lot onto Highway 64 West, passed a car going in the opposite direction, and a second or two later saw the plaintiff in the middle of his traffic lane at a distance of about 50 to 70 feet. The defendant swerved to the left and applied his brakes. The plaintiff, in an intoxicated condition, staggered one or two steps at a 45 degree angle towards the center of the highway. The middle portion of the bumper of the defendant\u2019s car struck the plaintiff, and the accident occurred in the left center of defendant\u2019s lane of travel.\nThe facts in the present case are hardly similar. Plaintiff\u2019s intestate was not intoxicated, defendant, although he had a straight and level stretch of roadway, did not even see her or her daughter e'ven though they were wearing bright clothing and had crossed approximately 30 feet of the travel portion of the highway before plaintiff\u2019s intestate was killed. Certainly plaintiff\u2019s intestate did not stagger back to the middle of the lane in which she was struck and obviously, since defendant did not see her, he did not swerve to avoid her as did the defendant in Meadows.\nWe also hold the trial court erred in directing a verdict for defendant on the grounds that plaintiff\u2019s intestate\u2019s contributory negligence was a bar to the claim as a matter of law.\n\u2018[T]he general rule is that a directed verdict for a defendant on the ground of contributory negligence may only be granted when the evidence taken in the light most favorable to plaintiff establishes her negligence so clearly that no other reasonable inference or conclusion may be drawn therefrom. Contradictions or discrepancies in the evidence even when arising from plaintiff\u2019s evidence must be resolved by the jury rather than by the trial judge. [Citations omitted]\u2019 Clark v. Bodycombe, 289 N.C. 246, 251, 221 S.E.2d 506, 510 (1976). Accord, Rappaport v. Days Inn, 296 N.C. 382, 250 S.E.2d 245 (1979).\nHelvy v. Sweat, 58 N.C. App. 197, 199, 292 S.E.2d 733, 734-35, disc. review denied, 306 N.C. 741, 295 S.E.2d 477 (1982). Our courts have held that a pedestrian\u2019s failure to yield the right of way as dictated by G.S. 20-174(a) is not contributory negligence per se, but is only 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. Dendy v. Watkins, 288 N.C. 447, 219 S.E.2d 214 (1975). \u201c[T]he court will only nonsuit . . . when all the evidence so clearly establishes his failure to yield the right of way as one of the proximate causes of his injuries that no other reasonable conclusion is possible.\u201d Ragland v. Moore, 299 N.C. 360, 364, 261 S.E.2d 666, 668 (1980). \u201cA rule which by definition requires contributory negligence to be so clear \u2018that no other reasonable inference may be drawn therefrom\u2019 will by its nature be satisfied only infrequently and only in extreme circumstances.\u201d Wagoner v. Butcher, 6 N.C. App. 221, 231-32, 170 S.E.2d 151, 158 (1969).\nWhile the evidence in the present case is sufficient to permit the jury to find that plaintiff\u2019s intestate was negligent in that she did not keep a proper lookout, did not yield the right of way to defendant, and that one or more of these negligent acts was a proximate cause of the collision and her death, we cannot say that under all the circumstances of this case that the evidence so clearly establishes her negligence that \u201cno other reasonable inference or conclusion may be drawn therefrom.\u201d The evidence in the present case tends to show that plaintiff\u2019s intestate and her daughter stopped and looked in both directions before they began to cross the highway and that they did not see any approaching vehicles. The evidence also tends to show that plaintiff\u2019s intestate, with her daughter, crossed 30 feet of the travel portion of the highway before she was struck by defendant\u2019s vehicle.\nFrom this evidence the jury could infer that the negligence of defendant, hereinbefore described, was the proximate cause of the collision, and not the negligence of plaintiff\u2019s intestate in failing to see defendant\u2019s vehicle. Ordinarily, proximate cause is a question for the jury.\nWe hold the trial judge erred in directing a verdict for defendant, and the cause will be remanded to the Superior Court for a new trial.\nWe need not discuss at this time the question of whether the court erred in not submitting the issue of last clear chance, since that issue can only be decided from the evidence at the new trial.\nNew trial.\nJudge EAGLES dissents.\nJudge Greene concurs.", "type": "majority", "author": "HEDRICK, Chief Judge." }, { "text": "Judge Eagles\ndissenting.\nI agree that there is sufficient evidence to submit the issue of the defendant\u2019s negligence to the jury. However, I disagree with that portion of the majority\u2019s opinion which holds that the plaintiff was not contributorily negligent as a matter of law.\nThe majority attempts to distinguish the instant case from Meadows v. Lawrence, 75 N.C. App. 86, 330 S.E.2d 47, affirmed, 315 N.C. 383, 337 S.E.2d 851 (1985), because of factual dissimilarities. In doing so, the majority overlooks the sound legal principles applied in Meadows, which are equally applicable here. In Meadows, this court stated:\nIt was plaintiff\u2019s duty to look for approaching traffic before she attempted to cross the highway. Having started, it was her duty to keep a lookout for it as she crossed.\nBlake v. Mallard, 262 N.C. at 65, 136 S.E.2d at 216-7. Accord Garmon v. Thomas, 241 N.C. 412, 85 S.E.2d 589 (1955) (plaintiff was negligent in failing to keep a \u201ctimely lookout\u201d).\nThe 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\u2019s failure to see and avoid defendant\u2019s vehicle will consistently be deemed contributory negligence as a matter of law. See Price v. Miller, 271 N.C. 690, 157 S.E.2d 347 (1976); Blake v. Mallard; Hughes v. Gragg, 62 N.C. App. 116, 302 S.E.2d 304 (1983); Thorton v. Cartwright, 30 N.C. App. 674, 228 S.E.2d 50 (1976).\nMeadows, 75 N.C. App. at 89-90, 330 S.E.2d at 50.\nThese same guiding legal principles were applied in Price v. Miller, 271 N.C. 690, 157 S.E.2d 347 (1967), and are controlling here. In Price, the plaintiffs intestate was killed while crossing U.S. Highway 258 in Onslow County. There was no evidence that plaintiff\u2019s intestate was intoxicated or unsteady on his feet. Id. at 691, 157 S.E.2d at 349. After reviewing the relevant case law, the Supreme Court concluded that the plaintiff\u2019s intestate was con-tributorily negligent as a matter of law. The Court stated:\nIn the instant case, the evidence reveals that defendant\u2019s lights were burning and that plaintiff\u2019s intestate could have seen them at any time while the defendant\u2019s automobile was traveling toward him for a distance of at least one-half mile. The road was straight and level. The weather was clear. We have concluded that plaintiff\u2019s evidence provided sufficient inferences of negligence to carry this case to the jury against the defendant on the theory that she failed to keep a proper lookout. If defendant were negligent in not seeing plaintiff\u2019s intestate, ..., in whatever length of time he might have been in the vision of her headlights, then plaintiff\u2019s intestate must certainly have been negligent in not seeing defendant\u2019s vehicle as it approached, with lights burning, along the straight and unobstructed highway.\nPrice, 271 N.C. at 696, 157 S.E.2d at 351.\nHere, the evidence, when taken in the light most favorable to the plaintiff, shows the following: that the plaintiff\u2019s intestate was crossing a long straight segment of U.S. Highway 74 at night; that there was nothing obstructing the visibility of the defendant or the plaintiff\u2019s intestate; that the defendant was burning his headlights; and that while the plaintiff\u2019s intestate did look both ways before she started to cross the highway, she did not continue to maintain a lookout as she crossed the highway. As in Price:\nWe must conclude that plaintiff\u2019s intestate saw defendant\u2019s automobile approaching and decided to take a chance of getting across the road ahead of it, or in the alternative, that [s]he not only failed to yield the right of way to defendant\u2019s automobile, but by complete inattention [failed to maintain a lookout as she crossed the highway].\nIn any event, the only conclusion that can be reasonably drawn from plaintiff\u2019s evidence is that plaintiff\u2019s intestate\u2019s negligence was at least a proximate cause of [her] death.\nPrice, 271 N.C. at 696, 157 S.E.2d at 351.\nFor the reasons stated, I respectfully dissent.", "type": "dissent", "author": "Judge Eagles" } ], "attorneys": [ "Yow, Culbreth & Fox, by Stephen E. Culbreth, for plaintiff, appellant.", "Smith and Smith, by Walter M. Smith, for defendant, appellee." ], "corrections": "", "head_matter": "ALBERT A. McNEIL, Administrator of the Estate of CLEMENTINE SMITH McNEIL, Plaintiff v. DEREK KENNETH GARDNER, Defendant\nNo. 915SC37\n(Filed 17 December 1991)\n1. Automobiles and Other Vehicles \u00a7 542 (NCI4th)\u2014 pedestrian struck by vehicle \u2014 sufficient evidence of driver\u2019s negligence\nIn an action to recover for the death of plaintiff\u2019s intestate who was struck by defendant\u2019s vehicle while crossing a highway at night, plaintiff\u2019s evidence was sufficient for submission to the jury on the issue of defendant\u2019s negligence where it would permit the jury to find that defendant operated his vehicle without keeping a proper lookout and at an excessive and unlawful rate of speed under the circumstances; that he failed to decrease the speed of his vehicle as he approached an intersection; and that he failed to see plaintiff\u2019s intestate and her daughter as they crossed approximately thirty feet of the traveled portion of the highway directly in front of his vehicle before the accident.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 479, 490.\n2. Automobiles and Other Vehicles \u00a7 614 (NCI4th)\u2014 pedestrian struck by vehicle \u2014no contributory negligence as matter of law\nWhile the evidence was sufficient to permit the jury to find that plaintiff\u2019s intestate was contributorily negligent when she was struck by defendant\u2019s vehicle while crossing a highway at night in that she did not keep a proper lookout and did not yield the right of way to defendant, the evidence did not disclose contributory negligence by plaintiff\u2019s intestate as a matter of law where it tended to show that the intestate and her daughter stopped and looked in both directions before they began to cross the highway but did not see any approaching vehicles, and that the intestate and her daughter crossed thirty feet of the traveled portion of the highway before she was struck by defendant\u2019s vehicle.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 475, 480-482.\nJudge EAGLES dissenting.\nAPPEAL by plaintiff from Reid (David), Judge. Judgment entered 10 October 1990 in Superior Court, New HANOVER County. Heard in the Court of Appeals 15 October 1991.\nThis is a civil action wherein plaintiff seeks damages for the wrongful death of his intestate, Clementine Smith McNeil, allegedly resulting from the negligence of defendant in the operation of a motor vehicle. The evidence at trial tends to show the following: On 15 August 1986 at approximately 10:00 p.m., plaintiff\u2019s intestate and her daughter were crossing U.S. Highway 74 from south to north after purchasing a bottle of grapefruit juice at the Scotchman Convenience Store. The store is located on the south side of Highway 74, just west of the intersection of Highway 74 and rural roads 1475 and 1482. Defendant was driving west on Highway 74 approaching the Scotchman Convenience Store at the time plaintiff\u2019s intestate was crossing Highway 74. Defendant\u2019s car struck and killed plaintiff\u2019s intestate.\nTrooper M.C. Brinkley testified that he investigated the accident. The travel portion of Highway 74 at the site of the accident is 35 feet wide \u2014a turn lane and east-bound lane 24 feet in width, and a west-bound lane 11 feet in width. The grapefruit juice bottle was found broken in the roadway two feet, ten inches from the white line marking the northern portion of the west-bound travel lane, and 32 feet west of the center of the intersection of Highway 74 and rural- roads 1475 and 1482. Plaintiff\u2019s intestate\u2019s body was lying on the shoulder of the highway forty-nine feet, seven inches from the broken bottle. Defendant\u2019s car stopped 2,364 feet, six inches west of the broken bottle. Trooper Brinkley testified that there were no skid marks on the highway in the general area of the accident. He also stated that there were artificial lights in and around the Scotchman Convenience Store.\nPortions of defendant\u2019s deposition testimony were entered into evidence at trial. Defendant stated that Highway 74 is generally straight and level, with no hills or curves for at least a mile prior to where the collision occurred. He further stated that although there was nothing to obstruct his view, he did not see plaintiff\u2019s intestate until his car hit her. Defendant indicated that plaintiff\u2019s intestate would have been more than halfway across the westbound lane of travel, having crossed two and one-half lanes, before being struck by the right front portion of his car. Defendant could not determine why he had not seen plaintiff\u2019s intestate, and was not sure if he had been looking down the road, but did remember being engaged in a conversation with a Mr. Barton and a Mr. Miller at the time.\nTracy Smith, daughter of plaintiff\u2019s intestate, testified that at the time of the accident she was wearing a white shirt, white colored sneakers and grass colored shorts, and that her mother was wearing a bright yellow shirt, a pair of jeans, and tennis shoes. Tracy further testified that as they started to cross the highway they \u201clooked both ways and there wasn\u2019t anything coming, so we crossed the street.\u201d Tracy also stated that she \u201cgot right to the shoulder [of the highway] and I felt something push my right shoulder and I fell to the ground.\u201d Tracy testified that she fell on the unpaved shoulder of the road, at which point she heard the bottle her mother had been holding break, and that \u201cI saw my mom laying on the pavement up the street a little ways . . . and she was all broken up and stuff, so I went to Miss Hayes\u2019 house . . . and I called an ambulance.\u201d\nAt the close of plaintiff\u2019s evidence, the court allowed plaintiff\u2019s motion to amend the pleadings to conform to the evidence and allege the doctrine of last clear chance. After amendment of the pleadings, the judge refused to submit the case of negligence and last clear chance to the jury and allowed defendant\u2019s motion for directed verdict on the issue of plaintiff\u2019s intestate\u2019s contributory negligence as a matter of law. Plaintiff appealed.\nYow, Culbreth & Fox, by Stephen E. Culbreth, for plaintiff, appellant.\nSmith and Smith, by Walter M. Smith, for defendant, appellee." }, "file_name": "0692-01", "first_page_order": 720, "last_page_order": 728 }