Oxendine ex rel. Oxendine v. Lowry, 260 N.C. 709 (1963)

Dec. 19, 1963 · Supreme Court of North Carolina

260 N.C. 709

ERTLE OXENDINE, ry his Next Friend, PEARL OXENDINE v. BRONFORD LOWRY.

(Filed 19 December 1963.)

1. Trial § 21—

On motion to nonsuit, plaintiff’® 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’s evidence as is favorable to -plaintiff may also be considered.

2. Automobiles § 41s—

Evidence favorable to plaintiff which tends -to -show that plaintiff was ■riding 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’s negligence.

3. Negligence § 7—

Only negligence which constitutes a proximate cause of injury is of legal import, either -on the issue of negligence or the issue of contributory negligence.

4. Evidence § 3—

The 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.

5. Automobiles § 11—

The 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).

6. Negligence § 7—

Ordinarily, 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.

7. Automobiles § 42m— Absence of front bicycle lamp held not proximate cause or contributing cause to collision from the rear.

Where plaintiff’s 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’s bicycle was hit from the rear by -a car -operated by defendant, and there is no evidence in the record that ■if 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<r a contributing proximate cause of the collision, and the court may properly charge the jury to this effect.

Appeal by defendant Branford Lowry from McKinnon, J., Fsbru-ary-Marrah 1963 Civil Session of Robeson.

Civil action to recover damages for personal injuries sustained by a sixteen-year-old boy, when the bicycle he was riding on a. ¡highway at night was struck from the rear by -an automobile owned by and registered in the name of Hazel Lowry Crdfab, and ‘driven by 'her brother Bran-food Lowry.

Plaintiff’s evidence considered in 'the light moist favorable to him shows the following facts: At -the scene of the tragedy hereinafter set forth Rural Paved Road #1513 is a level, straight paved road for a mile or more with pavement 'about 18 feet wide and with dirt shoulders on each iside oif the pavement. It runs in a generally northwest to southeast direction, 'and is known as the Buie-Lumbenton public highway. About 8:15 p.m. on 4 June 1961, five boys were riding bicycles on the dirt shoulder or pavement of this road in a southeasterly direction toward Lumberton as follows: Ransom Lowry, eight years old and a son of Branford Lowry, was riding in front on the right dirt shoulder; behind him on the right dint shoulder was his brother’ Kenneth Lowry, thirteen years old; behind 'him on the right dirt shoulder was Bob Allen Wilkins, fifteen, years old; behind, him on the right-hand edge of the pavement about 'six inches from the dirt shoulder was the plaintiff ; and about five yards behind him to his left and closer to the center line of the road was Scotty Jones, fourteen, years oil'd and a son of Hazel Lowry Ciribb. All five of the bicycles had red reflectors on them. Plaintiff’s bicycle had ¡a red reflector about two inches wide on the rear fender visible 'under normal atmospheric conditions from a distance of mora than two hundred feet to the rear of the bicycle, when used at night. His grandmother Pearl Oxendün© testified: “He would ride the bicycle ahead of the car on the way back (from a church revival) , 'and I could .see the reflector for (about 500 yards * * His bicycle also had on it “spinners with reflector on the .front.” It did not have a lighted lamp on the 'front as required by G.S. 20-129 (e).

Some distance ahead oif these boys was a truck in the opposite lane of the highway, standing in front of a house, with its bright lights burning. Approaching these boys from behind and overtaking them was an automobile owned (by and registered in the name of Hazel Lowry Cobb, and driven by her brother Branford Lowry at a speed of 60 to 65 miles an ¡hour. Without slacking speed this automobile struck Scotty Jones 'and 'bis ¡bicycle and plaintiff and bis bicycle. After bitting these two boyis Bronford Lowry “slammed” on ibis brakes, stopped, and came baick to> 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 “the automobile did not .give any kind of signal” before it struck the boyis. When Bronford Loiwry returned to the scene, be said “be couldn’t see the boys, the lights were blinding him” — the lights of 'the .parked truck.

Plaintiff did not know what had hit him. He testified: “Before I was hit in the back I didn’t bear any car bom or warning from behind me, observed no flash of lights or blinking of lights or anything of that sort.”

Appellant’s 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.

Defendant’s 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 ©ometliing 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.

The 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.

From a judgment .that .plaintiff recover $5,000, with his costs, from Bronford Lowry, he appeals.

Ellis E. Page for defendant appellant.

McLean & Stacy for plaintiff appellee.

PARKER, J.

Defendant ’offered evidence. Considering plaintiff’s' evidence in, the light most favorable to him and giving him the benefit of every reasonable inference to' be drawn therefrom, ’and 'Considering so much oif defendant’s evidence as is favorable to him, the count properly rsuibonitted’ the case to the jury, -and defendant’s assignment of error to the eoiurt’is '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.

Defendant in his answer alleged a conditional plea of contributory negligence 'on plaintiff’s 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).

Plaintiff’is evidence shows that on this occasion ¡his bicycle was not equipped with a lighted lamp on the front thereof When he was struck.

The court in its 'Charge in respect to1 the second issue of contributory negligence of plaintiff 'stated ipsiséimis verbis 'G.S. 20-129 (e), and immediately thereafter charged the jury as follows, Which appellant assigns as error:

“And 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 ¡the 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 <a matter of law would not be a proximate cause of a collision resulting from plaintiff being struck in the rear, as •alleged in this action.”

It is a fundamental principle ¡that the only negligence oif legal importance i® negligence which -proximately causa® or contributes to the injury under judicial investigation. McNair v. Richardson, 244 N.C. 65, 92 S.E. 2d 459; Cox v. Freight Lines and Matthews v. Freight Lines, 236 N.C. 72, 72 S.E. 2d 25; Smith v. Whitley, 223 N.C. 534, 27 S.E. 2d 442; Byrd v. Express Co., 139 N.C. 273, 51 S.E. 851.

We take judicial notice of the fact that in North Carolina about 8:15 p.m. on 4 June 1961 was within the period of time from a half hour after sunset to a 'half hour before sunrise. Weavil v. Myers, 243 N.C. 386, 90 S.E. 2d 733; 31 C.J.S., Evidence, p. 700.

Under G.S. 20-38 (ff) of our Motor Vehicles Act, bicycles are “deemed vehicle®, and every rider of a bicycle upon a highway shall be subject to the provisions of this article applicable to> the driver of a vehicle except those which by their nature can have no application.” 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.

“The 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.” Scarborough v. Ingram, 256 N.C. 87, 122 S.E. 2d 798.

What 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 ■one 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. “It 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.” Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 29 S.E. 2d 740.

It 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® 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« amend-ad by eh. 16, Oregon Laws 1947, provided: “(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.” The Court said:

“This provision respecting a front lamp on a bicycle is designed for the benefit of those approaching a bicycle -¡rom the front and for the protection of ithe bicyclist from such. It in no way requires ■a 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.

“The 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.

-x- x*

“There is no evidence in this record that if the front lamp on this bicycle hiad been burning it could have been better seen by ■one operating a motor vehicle from the rear, nor is there any evidence from which such inference might reasonably be drawn. X* X- *

“Ordinarily, 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.”

In 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 Sitíate respecting front lamp's on bicycles of 'almost i'demtiical language to that found in the statute of North Carolina. In that ¡ease -plaintiff, a minor -age ¡about fourteen years, was riding his bicycle on the highway when it wars dark, and tied to his bicycle wais another bicycle ridden ■by 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 ¡by defendants’ sedan automobile and injured. Defendants contend .plaintiff w-as- guilty ¡of contributory negligence as -a matter of law in riding ¡an -unlighted -bicycle upon a public highway at night. Respecting thi-s contention, the California Court, after quoting -the statute above referred to, said:

“Inasmuch as ¡the -bicycles were equipped with red reflectors, ■which 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 ¡case that such ¡bicycles 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.”

Plaintiff’s evidence, in fact ¡ail 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.

G.S. 20-129 (e) requires that “every 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.” This is entirely different from tibe requirement for mo-tor vehicles, when used at ¡night as set forth in G.S. 20-131 (a): “The head lamps ¡of -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 § 20-129, and under normal ¡atmospheric -conditions ¡and on -a level road, produce a ¡driving light sufficient to- render clearly discernible -a person two hundred feet ahead * *

Plaintiff’s 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 ¡the record that if plaintiff’s ¡bicycle had been equipped with “a lighted lamp on the front thereof,” 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. “In the abs-emoe oí some probable causal connection, bald negligence per se can raise no presumption of proximate cause: it may be wholly innocent.” Tendoy v. West, 51 Idaho 679, 9 P. 2d 1026. “Proximate 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.” 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’s 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 ■approaching the bicycle with an 'automobile from .the -rear, permits only one legitimate ■inference to be drawn, and that *is that the absence of a lighted lamp .on plaintiff’s bicycle was not a proximate cause or a contributing proximate cause of .pteintiff’s injuries. To. hold otherwise “would unloose a jury to wander aimlessly in the fields of speculation.” 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.

The 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.

This appears in the charge of tire court:

“The 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.”

The 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.

No error.