#### JOHN JENKINS v. ROSE LEE THOMAS and CHARLIE WILLIS THOMAS.

(Filed 19 December 1963.)

Automobiles § 411—

Evidence disclosing itha-t a pedestrian, instead) of crossing ait an intersection where be bad the right of way, G.'S. 20-174(a), elected to cross some 100 feet south of the intersection, and .that he was struck by defendant motorist who was traveling, with his lights on, some 25 miles per ■hour .in a 35 mile per hour zone, is held to warrant nonsiuit in the absence of evidence not only that plaintiff was oblivious to the danger but that .defendant saw, or in the exercise of reasonable care should have seen, that plaintiff was- not aware .of the approaching danger.

Appeal by plaintiff from Froneberger, J., July 22,1963 Regular Civil Session of GastoN.

Plaintiff was injured when struck by an automobile owned by feme defendant, operated by male defendant. Plaintiff alleged his injuries resulted from (the negligent operation of the motor vehicle. Defendants denied the injuries .were caused by their negligence, but if so-, plaintiff was ciontributorily negligent. Plaintiff replied defendants bad the last ¡clear chance -to- avoid the injury.

The court allowed defendants’ motion to. nonsuit, made at ¡the conclusion -of plaintiff’s evidence. Plaintiff appealed'.

Horace M. DuBose, III and Donald E. Ramseur for plaintiff appellant.

Hollowell & Stott by Grady B. Stott for defendant appellees.

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 *769forty 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.