BOBBITT, J., dissenting.

This is a civil action instituted by the plaintiff to recover for personal injuries sustained as a result of the alleged negligence of the defendant.

On 26 June, 1953, the northern lane of U.S. Highway No. 74, some distance east of the City of Monroe, in Union County, was under construction. The southern lane, which was to become the east-bound lane of a dual highway, was being used by east and west-bound traffic. The hard surfaced portion of this lane was approximately 22 feet wide with a shoulder on the south side of 8 or 9 feet. The northern shoulder of this traffic lane had not been completed or filled in after the hard surfaced portion thereof had been completed.

The plaintiff, at the time of the accident complained of, was an employee of the contractor who was constructing the dual highway. He was required among other things to keep flambeaux burning which had been placed on the low shoulder along the northern edge of the south or open lane of traffic. On the particular afternoon in question, the plaintiff was engaged in refilling the flambeaux with oil from a container he carried in the trunk of his car, replacing and relighting them. He drove his car along the highway and parked it at intervals of approximately 60 feet on the southern shoulder of the road. He had crossed the road a number of times, having picked up and refilled 20 flambeaux before the accident occurred.

According to the plaintiff's testimony, immediately prior to the accident he started across the highway with two flambeaux, one lighted, the other not. That he was standing about 2 feet from the south edge of the pavement. He looked in the direction of Wadesboro to the east and saw no cars in sight. He then looked toward Monroe and saw a car coming from that direction. He waited until the car from Monroe passed; when this car had passed, he looked all the way down the road toward Wadesboro again and back toward Monroe and there was no truck in view. "Then I started across and then I glanced a couple of times to the right and that in so glancing I covered say, only 20, 30, or 40 feet both times. There wasn't anything coming when I looked." That he could see 700 feet down the highway in the direction from which the defendant's truck came, but that the truck was within 5 feet of him when he first saw it; that he jumped as high as he could and was hit when he was about a foot and a half from the northern edge of the pavement.

A highway patrolman who was a witness for the plaintiff testified that the plaintiff and the defendant pointed out to him the point of impact which was approximately two and one-half feet from the northern edge of the highway; that there were skid marks heading back from the defendant's truck for 39 feet and that the truck stopped about 12 feet from where the skid marks ended. There was one continuous run of skid marks, an over-all of 75 feet. Such skid marks were medium, not too light or too heavy. That Mr. Thomas, the defendant, stated he was headed west on the highway and was traveling approximately 25 miles an hour; that he didn't see Mr. Garmon until he was too close to him to stop. He asked Mr. Garmon what happened and he said that he didn't see the truck until it was too late and when he did he jumped in the air and the right front of the truck hit him. That he examined the truck and the right front fender and headlight had been damaged. He estimated the damage at $20.00.

The defendant testified that he was familiar with the highway; that he knew about the signs stating the road was under construction; that he traveled the road three or four times a day; that the sun was shining practically in his face coming up the road when the accident happened. That Mr. Garmon was about 8 feet from the front of his truck when he first saw him; that "the reason I didn't see Mr. Garmon until the truck was some 8 feet from him was because I was blinded by the sun." That he could see right in front of the truck for 40 or 50 feet "looking kind of at the ground"; that he was traveling about 20 miles an hour at the time the truck came into collision with Mr. Garmon. That he skidded about the length of the truck and about twice the length of the truck from where Mr. Garmon was lying when it stopped. That the road had been recently tarred with fresh tar and it was slick. That he was engaged in hauling lumber and was on his way at the time of the accident to a sawmill near Waxhaw to get a load of lumber; that he was driving his own two-ton Ford, stake-body truck. There was no construction work going on along the southern lane of the highway which was open and constituted a part of one continuous highway from Monroe to Wadesboro.

All the evidence tends to show that the accident did not occur in a residential or business district; that it occurred about three o'clock in the afternoon on a bright sunny day; that the highway was almost level and visible for a distance of from 700 to 1,000 feet in the direction from which the defendant's truck was driven.

The usual issues of negligence, contributory negligence, and damages were submitted to the jury and answered in favor of the plaintiff. From judgment on the verdict, the defendant appeals, assigning error.

DENNY, J.

The defendant challenges the correctness of the refusal of the court below to sustain his motion for judgment as of nonsuit on the ground that the plaintiff was contributorily negligent as a matter of law.

In relying on this assignment of error, the defendant necessarily concedes his own negligence. Therefore, the question presented is whether the evidence adduced in the trial below, when considered in the light most favorable to the plaintiff, clearly establishes his negligence as a contributing or proximate cause of his injury. If the plaintiff's negligence did contribute to his injury it need not have been the sole proximate cause thereof in order to bar recovery, but it is sufficient if it was a proximate cause or one of them. Badders v. Lassiter, 240 N.C. 413, 82 S.E.2d 357; Lyerly v. Griffin, 237 N.C. 686, 75 S.E.2d 730; Stevens v. R. R., 237 N.C. 412, 75 S.E.2d 232; Dawson v. Transportation Co., 230 N.C. 36, 51 S.E.2d 921; Godwin v. R. R., 220 N.C. 281, 17 S.E.2d 137; Hampton v. Hawkins, 219 N.C. 205, 13 S.E.2d 227.

The burden of showing contributory negligence is on the defendant and a motion for judgment as of nonsuit will not be allowed if the controlling and pertinent facts are in dispute, nor where opposing inferences are permissible from plaintiff's proof. Battle v. Cleave, 179 N.C. 112, 101 S.E. 555; Ferguson v. Asheville, 213 N.C. 569, 197 S.E. 146; Templeton v. Kelley, 215 N.C. 577, 2 S.E.2d 696. But the plaintiff may relieve the defendant of the burden of showing contributory negligence when it appears from his own evidence that he was contributorily negligent. Godwin v. R. R., supra.

There is some evidence with respect to skid marks that would tend to show that the defendant became aware of plaintiff's presence on the road while he was a greater distance from him than that shown by his oral testimony. However, the doctrine of last clear chance is not pleaded. Neither is there any evidence which would have put the defendant on notice, if it had been that the plaintiff was incapacitated or incapable of exercising ordinary care for his own safety. Aydlett v. Keim, 232 N.C. 367, 61 S.E.2d 109. The plaintiff's testimony shows that he was advertent to the fact that the road was in use as a highway.

G.S. 20-174, subsection (a), provides that: "Every pedestrian crossing a roadway at any point other than within a marked cross-walk or within an unmarked cross-walk at an intersection shall yield the right of way to all vehicles upon the roadway." While in subsection (e) of this statute it is provided as follows: "Notwithstanding the provisions of this section, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, and shall give warning by sounding the horn when necessary, and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway."

The defendant, pursuant to the provisions of the above statute, had the right of way on the occasion under consideration subject to the provisions of subsection (e) thereof.

The facts disclosed by this record are unusual in certain respects. The defendant traveled from 700 to 1,000 feet along a main traveled highway at approximately 25 miles per hour, partly blinded by the sun, and never saw the plaintiff until he was too close to him to stop before hitting him. On the other hand, the plaintiff, according to his testimony, never saw the approaching truck until it was within 5 feet of him although he testified that he looked all the way down the road toward Wadesboro just before he started across the highway and that the defendant's truck was not in sight. He further testified that he glanced to his right when he was halfway across the highway and saw nothing. But all the evidence supports the view that the plaintiff could have seen the defendant's truck at any time while it was traveling toward him for the distance of 700 to 1,000 feet if he had looked. Furthermore, there is no evidence that the defendant was driving his truck at an excessive or illegal rate of speed. Conceding, however, that the defendant should have seen the plaintiff and given him warning of his approach, the plaintiff was at all times under the duty to see the defendant and to yield the right of way to him. In our opinion, both parties were negligent. The defendant was negligent in failing to exercise due care to avoid colliding with the plaintiff on the highway, Lewis v. Watson, 229 N.C. 20, 47 S.E.2d 484, and the plaintiff was negligent in failing to exercise reasonable care for his own safety in that he failed to keep a timely lookout to see what he should have seen and could have seen if he had looked. Tysinger v. Dairy Products, 225 N.C. 717, 36 S.E.2d 246; Jenkins v. Johnson, 186 Va. 191, 42 S.E.2d 319. The facts compel the view that the defendant's truck was near the plaintiff and plainly visible to him if he had looked at the time he walked into its path. "There are none so blind as those who have eyes and will not see." Baker v. R. R., 205 N.C. 329, 171 S.E. 342.

The facts in the case of Williams v. Henderson, 230 N.C. 707, 55 S.E.2d 462, which is relied upon by the plaintiff, are distinguishable from those here, as well as the facts in Tysinger v. Dairy Products, supra, and similar cases. In the Williams case, the deceased lived on the north side of the highway. She left her home to go to her mailbox on the southern edge of the highway. As she crossed the highway, two heavily loaded oil trucks were approaching from the west traveling 45 or 50 miles an hour. The first truck passed the deceased. As the second truck approached, deceased was standing at the mailbox on the shoulder of the road, apparently oblivious of the approach of the second truck. When the truck was within 15 or 20 feet of the deceased, she turned suddenly and "started back across the highway in a fast walk." She was hit by the truck and thrown 112 feet while the truck traveled 250 feet before it stopped. This Court, speaking through Barnhill, J., now Chief Justice, said: "Here the defendant was operating his heavily loaded truck at 45 to 50 miles per hour within 150 feet of the vehicle just ahead. As the road was straight he saw or should have seen the deceased on the shoulder of the highway standing at the mail box even before the first truck passed her. She had her back to him and was apparently oblivious of his approach. Yet he did not slacken his speed or apply his brakes or sound his horn. These circumstances present a case for the jury."

In the case of Tysinger v. Dairy Products, supra, the plaintiff's deceased was walking in the direction from which the defendant's truck was approaching, and suddenly started to cross the highway and was hit by the side of the truck. The truck had been visible for at least 300 yards. Winborne, J., speaking for the Court, said: ". . . it was the duty of plaintiff's testator, in crossing the highway at a point other than within a marked cross-walk or within an unmarked cross-walk at an intersection, to yield the right of way to defendant's truck approaching upon the roadway, and the operator of the truck, in the absence of anything which gave or should have given notice to the contrary, was entitled to assume and to act upon the assumption that plaintiff's testator would use reasonable care and caution commensurate with visible conditions, and that he would observe and obey the rules of the road. . . . And there is no evidence of anything that gave or should have given notice to the operator of defendant's truck that plaintiff's testator was unaware of the approach of the truck, and would not obey the rule of the road, until the time the testator started across the highway, nor is there evidence as to how close the truck was to him when he started across except the fact that he was stricken by the side of the truck near the center of the highway. Under such circumstances, to infer that the operator of the truck failed to exercise due care to avoid colliding with the testator upon the roadway, or to infer that a failure to give warning by sounding the horn was a proximate cause of the collision between the truck and testator, . . . would be mere speculation."

In Jenkins v. Johnson, supra, the decedent was observed standing on the south side of the highway. As soon as two motor vehicles traveling east passed him, he started across the highway. Defendant, traveling west at between 25 and 30 miles an hour, first saw decedent when he (decedent) was about the center of the highway and defendant was 25 or 30 steps to the east. Defendant immediately blew his horn. When he saw that decedent did not intend to stop and permit him to pass, he swerved his car to the right. At the same time decedent increased his speed and walked or half ran into the side of defendant's car when the right wheels were at least 3 feet off the hard surface of the road shoulder. The Supreme Court of Virginia said: "The highway was level and straight for approximately one-quarter of a mile east and west of the point of impact. After the motor vehicles traveling east had passed, there as nothing to prevent either defendant or decedent from seeing the other. If defendant was negligent in failing to see decedent, decedent was equally negligent in failing to see defendant's car. If it be conceded that the defendant was negligent in failing to see decedent in time to have avoided the accident, then it must be conceded that if decedent had stopped walking at any point within four feet of the northern edge of the hard surface, he would have saved himself from the collision." The Court held that the decedent's negligence was a contributing cause of his injuries. The defendant's motion for judgment as of nonsuit should have been allowed.

Reversed.