right-of-way, also found expression in Government Employees Ins. Co. v. Thompson, 351 So. 2d 809 (La. 1977). There, the court emphasized that permission to pass in front of the stopped truck does not relieve pedestrians of the obligation to "keep a proper lookout for oncoming traffic in other lanes". Id. at 810. See, Grisanti v. United States, 284 F. Supp. 308, 311-13 (E.D. N.C. 1968).
Other courts which have considered the issue agree that the liability of the signaling operator should not be submitted to the jury, Dix v. Spampinato, 28 Md. App. 81, 344 A. 2d 155, 170-71 (1975), aff'd, 278 Md. 34, 358 A. 2d 237 (1976); Van Jura v. Row, 175 Ohio St. 41, 191 N.E. 2d 536 (1963); Hill v. Wilson, 124 Cal. App. 2d 472, 268 P. 2d 748 (1954); Charles v. Sullivant, 159 So. 756 (Al. 1935); Harris v. Kansas City Public Service Co., 132 Kan. 715, 297 P. 718 (1931), this view is not, however, universally accepted. See, Riley v. Board of Education, 223 N.Y.S.2d 389 (1962); Armstead v. Holbert, 146 W.Va. 582, 122 S.E. 2d 43 (1961); Cunningham v. Walsh, 53 R.I. 23, 163 A. 223 (1932); Spagnola v. New Method Laundry Corp., 112 Conn. 399, 152 A. 403 (1930). Some cases which reject the theory of the growing majority involved minor plaintiffs who, conceivably, could easily be misled by an erroneous signal. See, e.g., Sweet v. Ringwelski, 362 Mich. 138, 106 N.W. 2d 742 (1961).
In the case at bar, plaintiffs have alleged that, at the time of the accident, Sergeant McCracken was operating a "U.S. Marine Corp. 5 ton truck". See, Complaint para. 6. Under such circumstances, he was "not in a position to see right lane traffic traveling in the same direction". It is, therefore, "unreasonable" and legally erroneous to "conclude that [his] gesture [was] a signal that it [was] safe to proceed" across all the lanes of traffic. Nolde Brothers, Inc. v. Wray, 266 S.E. 2d at 884.
Neither can the truck's unexpected "surge" which purportedly placed plaintiffs before Woodard's car serve as a predicate for imposing liability upon the government. Under North Carolina law, pedestrians must keep a proper look-out and determine whether the road is clear and safe to cross. Grier v. United States, 291 F. Supp. 1020, 1021 (W.D. N.C. 1968); Grisanti v. United States, 284 F. Supp. at 311-13. Plaintiffs abdicated this responsibility to the truck driver when they purportedly relied upon his signal.
Whatever the cause of the truck's surge, the majority of the decided cases hold that pedestrians may not legitimately rely upon the driver's signal for any purpose other than to indicate waiver of the vehicle's right-of-way. The truck's surge, and plaintiffs' hurried avoidance of the vehicle, simply could not have placed them in jeopardy had they not improperly relied upon McCracken.
Hence, plaintiffs' presence on the highway, rather than the truck's surge or lurch, was the cause of the accident; absent their wrongful reliance upon the driver's signal the accident could not have occurred and plaintiffs could have safely avoided the surging truck by crossing into the adjacent lane without incident.
An appropriate order shall issue granting the government's motion for summary judgment.
AND NOW, this 12th day of April, 1983, IT IS ORDERED that the motion of defendant, United States, for summary judgment is GRANTED.