N.C.P.I.—Motor Vehicle 211.40A

The motor vehicle law provides that a pedestrian: (Here use one or

more of the following bracketed statements as the evidence justifies)

[shall not cross a roadway, except in a marked crosswalk, at any

place between adjacent intersections at which traffic control signals are

in operation]2

[crossing a roadway at any point other than within an unmarked

crosswalk at an intersection3 or a marked crosswalk, shall yield the right-of-way to all vehicles upon the roadway]

[crossing a roadway at a point where a pedestrian tunnel or

overhead pedestrian crossing has been provided, shall yield the right-of-way to all vehicles upon the roadway].

The motor vehicle law further provides that, despite the duty of the

pedestrian to yield the right-of-way, every operator 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]4

[confused or incapacitated person] upon a roadway).5

An operator has the right to assume, until put on notice to the

contrary, that a pedestrian will obey the law and yield the right-of-way.

The mere fact that the pedestrian is oblivious to danger does not impose

on the operator a duty to yield the right-of-way. Such a duty arises

when, and only when, the operator 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] [herself] to

peril.6

In other words, the operator must exercise that care which a

reasonably careful and prudent person would exercise under the existing

circumstances. A failure to exercise such care would be negligence.