{ "id": 8576109, "name": "ERTLE OXENDINE, ry his Next Friend, PEARL OXENDINE v. BRONFORD LOWRY", "name_abbreviation": "Oxendine ex rel. Oxendine v. Lowry", "decision_date": "1963-12-19", "docket_number": "", "first_page": "709", "last_page": "716", "citations": [ { "type": "official", "cite": "260 N.C. 709" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "133 S.E. 12", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "191 N.C. 722", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631258 ], "opinion_index": 0, "case_paths": [ "/nc/191/0722-01" ] }, { "cite": "81 N.C. 245", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8688248 ], "opinion_index": 0, "case_paths": [ "/nc/81/0245-01" ] }, { "cite": "51 Idaho 679", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 2339617 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/idaho/51/0679-01" ] }, { "cite": "238 P. 163", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "73 Cal. App. 1", "category": "reporters:state", "reporter": "Cal. App.", "case_ids": [ 2202348 ], "opinion_index": 0, "case_paths": [ "/cal-app/73/0001-01" ] }, { "cite": "72 P. 2d 248", "category": "reporters:state_regional", "reporter": "P.2d", "pin_cites": [ { "page": "249" } ], "opinion_index": 0 }, { "cite": "22 Cal. App. 2d 607", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 6041126 ], "opinion_index": 0, "case_paths": [ "/cal-app-2d/22/0607-01" ] }, { "cite": "190 Ore. 662", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2073991 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/or/190/0662-01" ] }, { "cite": "29 S.E. 2d 740", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "224 N.C. 211", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597672 ], "opinion_index": 0, "case_paths": [ "/nc/224/0211-01" ] }, { "cite": "178 S.E. 601", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "207 N.C. 787", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628584 ], "opinion_index": 0, "case_paths": [ "/nc/207/0787-01" ] }, { "cite": "40 S.E. 2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "226 N.C. 692", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624633 ], "opinion_index": 0, "case_paths": [ "/nc/226/0692-01" ] }, { "cite": "64 S.E. 2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609499 ], "opinion_index": 0, "case_paths": [ "/nc/233/0415-01" ] }, { "cite": "122 S.E. 2d 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "256 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571128 ], "opinion_index": 0, "case_paths": [ "/nc/256/0087-01" ] }, { "cite": "86 S.E. 2d 916", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608611 ], "opinion_index": 0, "case_paths": [ "/nc/242/0047-01" ] }, { "cite": "10 S.E. 2d 727", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "218 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617206 ], "opinion_index": 0, "case_paths": [ "/nc/218/0283-01" ] }, { "cite": "20 S.E. 2d 565", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "221 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627933 ], "opinion_index": 0, "case_paths": [ "/nc/221/0390-01" ] }, { "cite": "90 S.E. 2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625135 ], "opinion_index": 0, "case_paths": [ "/nc/243/0386-01" ] }, { "cite": "51 S.E. 851", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "139 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652440 ], "opinion_index": 0, "case_paths": [ "/nc/139/0273-01" ] }, { "cite": "27 S.E. 2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "223 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612920 ], "opinion_index": 0, "case_paths": [ "/nc/223/0534-01" ] }, { "cite": "72 S.E. 2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 72", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622355 ], "opinion_index": 0, "case_paths": [ "/nc/236/0072-01" ] }, { "cite": "92 S.E. 2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219589 ], "opinion_index": 0, "case_paths": [ "/nc/244/0065-01" ] }, { "cite": "133 S.E. 2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 } ], "analysis": { "cardinality": 924, "char_count": 20865, "ocr_confidence": 0.38, "pagerank": { "raw": 1.4759558289178473e-07, "percentile": 0.6601736240220955 }, "sha256": "376eb73cf1ebf4b517d7f73b1f73bd51ab09c361f41f60c387fc0856d3e92154", "simhash": "1:f72dd973892f947b", "word_count": 3634 }, "last_updated": "2023-07-14T17:49:29.885963+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ERTLE OXENDINE, ry his Next Friend, PEARL OXENDINE v. BRONFORD LOWRY." ], "opinions": [ { "text": "PARKER, J.\nDefendant \u2019offered evidence. Considering plaintiff\u2019s' evidence in, the light most favorable to him and giving him the benefit of every reasonable inference to' be drawn therefrom, \u2019and 'Considering so much oif defendant\u2019s evidence as is favorable to him, the count properly rsuibonitted\u2019 the case to the jury, -and defendant\u2019s assignment of error to the eoiurt\u2019is '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.\nDefendant in his answer alleged a conditional plea of contributory negligence 'on plaintiff\u2019s 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).\nPlaintiff\u2019is evidence shows that on this occasion \u00a1his bicycle was not equipped with a lighted lamp on the front thereof When he was struck.\nThe court in its 'Charge in respect to1 the second issue of contributory negligence of plaintiff 'stated ipsis\u00e9imis verbis 'G.S. 20-129 (e), and immediately thereafter charged the jury as follows, Which appellant assigns as error:\n\u201cAnd 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 \u00a1the 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 the driver of a vehicle except those which by their nature can have no application.\u201d 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.\n\u201cThe 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.\u201d Scarborough v. Ingram, 256 N.C. 87, 122 S.E. 2d 798.\nWhat 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 \u25a0one 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. \u201cIt 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.\u201d Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 29 S.E. 2d 740.\nIt 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\u00ae 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\u00ab amend-ad by eh. 16, Oregon Laws 1947, provided: \u201c(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.\u201d The Court said:\n\u201cThis provision respecting a front lamp on a bicycle is designed for the benefit of those approaching a bicycle -\u00a1rom the front and for the protection of ithe bicyclist from such. It in no way requires \u25a0a 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.\n\u201cThe 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.\n-x- x*\n\u201cThere is no evidence in this record that if the front lamp on this bicycle hiad been burning it could have been better seen by \u25a0one operating a motor vehicle from the rear, nor is there any evidence from which such inference might reasonably be drawn. X* X- *\n\u201cOrdinarily, 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.\u201d\nIn 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 Sit\u00edate respecting front lamp's on bicycles of 'almost i'demtiical language to that found in the statute of North Carolina. In that \u00a1ease -plaintiff, a minor -age \u00a1about fourteen years, was riding his bicycle on the highway when it wars dark, and tied to his bicycle wais another bicycle ridden \u25a0by 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 \u00a1by defendants\u2019 sedan automobile and injured. Defendants contend .plaintiff w-as- guilty \u00a1of contributory negligence as -a matter of law in riding \u00a1an -unlighted -bicycle upon a public highway at night. Respecting thi-s contention, the California Court, after quoting -the statute above referred to, said:\n\u201cInasmuch as \u00a1the -bicycles were equipped with red reflectors, \u25a0which 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 \u00a1case that such \u00a1bicycles 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.\u201d\nPlaintiff\u2019s evidence, in fact \u00a1ail 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.\nG.S. 20-129 (e) requires that \u201cevery 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.\u201d This is entirely different from tibe requirement for mo-tor vehicles, when used at \u00a1night as set forth in G.S. 20-131 (a): \u201cThe head lamps \u00a1of -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 \u00a7 20-129, and under normal \u00a1atmospheric -conditions \u00a1and on -a level road, produce a \u00a1driving light sufficient to- render clearly discernible -a person two hundred feet ahead * *\nPlaintiff\u2019s 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 \u00a1the record that if plaintiff\u2019s \u00a1bicycle had been equipped with \u201ca lighted lamp on the front thereof,\u201d 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. \u201cIn the abs-emoe o\u00ed some probable causal connection, bald negligence per se can raise no presumption of proximate cause: it may be wholly innocent.\u201d Tendoy v. West, 51 Idaho 679, 9 P. 2d 1026. \u201cProximate 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.\u201d 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\u2019s 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 \u25a0approaching the bicycle with an 'automobile from .the -rear, permits only one legitimate \u25a0inference to be drawn, and that *is that the absence of a lighted lamp .on plaintiff\u2019s bicycle was not a proximate cause or a contributing proximate cause of .pteintiff\u2019s injuries. To. hold otherwise \u201cwould unloose a jury to wander aimlessly in the fields of speculation.\u201d 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.\nThe 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.\nThis appears in the charge of tire court:\n\u201cThe 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.\u201d\nThe 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.\nNo error.", "type": "majority", "author": "PARKER, J." } ], "attorneys": [ "Ellis E. Page for defendant appellant.", "McLean & Stacy for plaintiff appellee." ], "corrections": "", "head_matter": "ERTLE OXENDINE, ry his Next Friend, PEARL OXENDINE v. BRONFORD LOWRY.\n(Filed 19 December 1963.)\n1. Trial \u00a7 21\u2014\nOn motion to nonsuit, plaintiff\u2019\u00ae evidence will be considered in, the light most favorable to him, giving him the benefit -of every reasonable inference to be drawn 'therefrom, and so much of defendant\u2019s evidence as is favorable to -plaintiff may also be considered.\n2. Automobiles \u00a7 41s\u2014\nEvidence favorable to plaintiff which tends -to -show that plaintiff was \u25a0riding his bicycle on the night side of the highway, that the bicycle was equipped with a reflector on the rear as required by G.S. 20-129(e), and that plaintiff was struck from the rear by the -automobile driven by defendant, wfho had drunk some beer and was traveling at excessive speed and rammed the bicycle without slackening speed or sounding his hom, iste., is held sufficient to be submitted to- the jury -on the issue of defendant\u2019s negligence.\n3. Negligence \u00a7 7\u2014\nOnly negligence which constitutes a proximate cause of injury is of legal import, either -on the issue of negligence or the issue of contributory negligence.\n4. Evidence \u00a7 3\u2014\nThe courts will 'take judicial -notice of the fact -that in this State 8:15 p.m. on June 4 is more than a half -hour after sunset.\n5. Automobiles \u00a7 11\u2014\nThe statutory .provisions- prescribing lighting devices to be used at night on vehicles, including bicycles, were enacted in the interest of public safety, and .the violation of the statutory provisions is negligence per se. GJS. 20-129(e), G.S. 20-38(ff).\n6. Negligence \u00a7 7\u2014\nOrdinarily, the question of proKimabe cause is for the determination of -the jury and it is only when the facts are all admitted and only one inference may be drawn from them that the court may declare whether an act was a proximate cause of an injury or not.\n7. Automobiles \u00a7 42m\u2014 Absence of front bicycle lamp held not proximate cause or contributing cause to collision from the rear.\nWhere plaintiff\u2019s evidence fails to show that Ms bicycle was equipped with a lig'hted lamp on the front thereof -as required by statute, but does show -that he had a reflecting mirror on its rear as required by the statute, G.,S. 20-129 (e), and that plaintiff\u2019s bicycle was hit from the rear by -a car -operated by defendant, and there is no evidence in the record that \u25a0if the bicycle had been equipped -with -a front lamp the lamp would have been visible to a person approaching in an automobile from the rear of the /bicycle, held the only legitimate inference is that the absence of a lighted lamp on the fromt of the bicycle was not a proximate cause o the scene oif the collision. In .the collision Scotty Jones was killed, and plaintiff was grievously injured. One of the struck bicycles or both bit Bob Allen Wilkins and the two Lowry 'boyis and knocked them in .a ditch. E. J. Cummings, an eye witness, testified \u201cthe automobile did not .give any kind of signal\u201d before it struck the boyis. When Bronford Loiwry returned to the scene, be said \u201cbe couldn\u2019t see the boys, the lights were blinding him\u201d \u2014 the lights of 'the .parked truck.\nPlaintiff did not know what had hit him. He testified: \u201cBefore I was hit in the back I didn\u2019t bear any car bom or warning from behind me, observed no flash of lights or blinking of lights or anything of that sort.\u201d\nAppellant\u2019s evidence favorable toi plaintiff is as follows: Tracy Bul-lard, a State patrolman and a witness for appellant, went to the scene and talked .with Bronford Lowry, that Lowry appeared to be drinking land told him he 'drank two or three or four beers that day, and the last beer 'he drank was around 3:30 p.m. Appellant testified be does not wear glasses, that he cannot see out of his right eye as good as out of 'his l'eft eye, and that the vision of his right eye is 25/100 and of his left eye 20/20.\nDefendant\u2019s evidence in substance is as follows: The scene of the tragedy was open' country. He was traveling 35 or 40 miles an hour on ithe right-hand side of the road. That none of the five bicycles was equipped with a lamp or reflector as required by G.S. 20-129 (e). The patrolman carefully examined the bicycles at the scene and saw no evidence of reflectors or lamps on any of the bicycles. When he saw the bright lights of the truck ahead .of him, be began slowing down. He saw nothing in front of him .on the road. He was blinded for a minute wben this 'truck was about 100 yards from him, and when so blinded he beard \u00a9ometliing bit his car. He stopped, turned around, and came back. He was not under the influence of the -beer he had drunk earlier in .the day.\nThe jury found by its verdict that plaintiff was injured by the negligence of Bronford Lowry as alleged in the complaint, that plaintiff did not contribute to bis injuries as alleged in the answer, and awarded him damages in the amount of $5,000.\nFrom a judgment .that .plaintiff recover $5,000, with his costs, from Bronford Lowry, he appeals.\nEllis E. Page for defendant appellant.\nMcLean & Stacy for plaintiff appellee." }, "file_name": "0709-01", "first_page_order": 749, "last_page_order": 756 }