The opinion of the court was delivered by: TROUTMAN
In our Memorandum and Order of April 12, 1983, 565 F. Supp. 386, we granted summary judgment on behalf of defendants Joe McCracken and the United States of America. In so doing, we determined that, as a matter of law,
North Carolina would not impose liability upon a driver who indicates to pedestrians that they may proceed across his lane of traffic and [, upon so proceeding,] are subsequently injured in an adjacent lane. (Memorandum at p. 3).
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. (Memorandum at pp. 5-6).
Briefly stated, the undisputed facts show that on the date of the accident, plaintiffs Woodrow and Betty Frey were attempting to cross a six-lane highway in Jacksonville, North Carolina. Plaintiffs were neither crossing at the intersection nor at a crosswalk. They successfully crossed the first three lanes, stopped briefly at the medial strip, and then started to cross the remaining three lanes. Traffic in the first two of the remaining three lanes was either stopped or in the process of stopping for a red light. Plaintiffs passed through the lane closest to the medial strip and entered the middle lane in front of a government truck being driven by Sergeant McCracken. McCracken had stopped the truck and motioned to the plaintiffs to walk in front of it. While plaintiffs were in front of the truck it suddenly and inexplicably bucked forward. Plaintiffs, fearing that the truck might pin them against the vehicle in front of it, leaped without looking into the final lane and were struck by Woodard's oncoming car. Unlike the prior two lanes, the final lane had an arrow which permits vehicles traveling in it to continue moving and to make a right turn at the intersection. Moreover, that lane separates from the other two lanes and funnels traffic onto the intersecting highway. A police investigation of the skid mark left by the Woodard vehicle showed that the vehicle had stopped at the point of, and immediately upon, impact with the plaintiffs.
Under North Carolina law,
"every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway ". N.C. GEN. STAT. § 20-174(a). Applying this law to motor vehicle negligence cases, the Supreme Court of North Carolina held that where a plaintiff pedestrian chooses to cross at a point where a defendant motorist has the right of way, the motorist has
the right to assume, until put on notice to the contrary, that the pedestrian would obey the law and yield the right of 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, or 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.
In light of the holding of Jenkins, and under the undisputed facts of the instant case, we are convinced that the defendant Woodard is not, as a matter of law, negligent. There is nothing which would indicate that Woodard, through the use of reasonable care, could have or should have seen the plaintiffs before they jumped from behind the truck and into his lane of travel. The fact that his vehicle was moving decreased the likelihood that he would see or anticipate the plaintiffs' appearance in front of him. Nonetheless, any chance he may have had to see them was prevented by the Government truck, the position of which was such that it hid the plaintiffs from his view until they blindly leaped into his path. Under these circumstances, it is remarkable that the defendant was able to bring his car to a halt so quickly. Moreover, his ability to stop the car exactly at the point of impact is further evidence of the reasonable manner in which he was driving. Therefore, we hold that, under North Carolina law, Woodard owed no duty to the plaintiffs and was not negligent. There is nothing in the record that would indicate a contrary result.
Our holding finds further support in the case of Dendy v. Watkins, 288 N.C. 447, 219 S.E.2d 214 (1975), the relevant facts of which are virtually identical to those of the case at bar. In Dendy, the plaintiff attempted to cross a six-lane highway at a point where there was neither an intersection nor a marked crosswalk. At the time plaintiff began to cross, traffic was backed up in each of the first two lanes because of a red light. Plaintiff crossed between cars in the first two lanes without incident. The cars in the third lane, that being the closest to the medial strip, were backed up to within a couple of car lengths from where plaintiff was crossing the road. Prior to entering the third lane he looked at the light and saw it was still red. He then looked in the opposite direction and saw no traffic coming. As he walked through the third lane, he glanced at the light again and saw it had turned green. He was about four feet from the medial strip at this point. Almost immediately he heard a car braking. He saw the defendant's vehicle only fifteen feet away and it impacted with him a split second later. The car came to rest almost immediately after impact.
The trial court granted the defendant's motion for summary judgment, holding that, under the facts, the defendant was not negligent and the plaintiff was contributorily negligent. The Court of Appeals reversed the trial court. However, the Supreme Court reversed the Court of Appeals agreeing with the trial court that the defendant was not, as a matter of ...