1. Trials--automobile collision--reference to insurance--
failure to declare mistrial earlier
The trial court did not abuse its discretion in the first of
three trials arising from an automobile collision by not
declaring a mistrial earlier in the proceedings based upon an
inadvertent reference to liability insurance. Defendant could
not have been prejudiced regarding negligence because the jury
deadlocked and did not decide that issue. As for resultant
prejudice on contributory negligence, the court did not abuse its
discretion by denying defendant's mistrial motion.
2. Appeal and Error--JNOV motions--mistrials and subsequent
trials--ripeness for appeal
A defendant in a negligence action arising from an
automobile collision was not prejudiced by the denial of his JNOV
motion on negligence, given the mistrial and subsequent retrial
on that issue, and his purported appeal of the denial of that
motion was not considered. However, defendant's appeal from the
denial of his motion for a directed verdict and JNOV on
plaintiff's contributory negligence is now ripe for appellate
review because it was decided at the first trial and, after two
more trials, a final judgment has issued.
3. Motor Vehicles--automobile accident--contributory
negligence--blinded by headlights
The trial court did not err by denying defendant's directed
verdict and JNOV motions on contributory negligence in an
automobile accident case where plaintiff was blinded by the
headlights of an oncoming automobile but slowed and applied her
brakes immediately upon seeing the lights of the approaching
vehicle.
4. Appeal and Error--preservation of issues--jury deadlock--
court's authority to submit other issues--no objection at
trial
The defendant in an automobile accident case did not
preserve for appellate review the issue of whether the trial
court had the authority to enter judgment on the contributory
negligence issue after the jury deadlocked on negligence where
defendant did not object to submission of the contributory
negligence issue to the jury and cites no authority for the
proposition that it was improper for the court to enter judgment
in light of defendant's assent to submission of the issue to thejury.
5. Appeal and Error--JNOV denied--mistrial as to those issues--
appeal after subsequent trial
Defendant's attempted appeal of the denial of his JNOV
motion in a negligence action was rejected where the trial was
the second of three and ended in a mistrial as to the issues
raised in the motion.
6. Appeal and Error--preservation of issues--jury instruction--
no objection at trial
The defendant in a negligence action arising from an
automobile collision did not object at trial to the intervening
negligence instruction as omitting foreseeability and therefore
did not preserve the issue for appellate review.
7. Negligence--subsequent trial--jury instruction--
determination of prior trial
There was no prejudice to defendant in the third trial of an
action arising from an automobile accident where the court
instructed the jury that the court had ruled that plaintiff was
not negligent rather than stating that plaintiff was determined
not to be negligent in a prior proceeding. Defendant did not
request an amendment to the instruction, the essence of the
statement was accurate, and the statement served to clarify that
the intervening negligence at issue was not that of plaintiff.
8. Trials--negligence--jury arguments--not grossly improper
Plaintiff's jury arguments in an action arising from an
automobile accident were not so grossly improper as to have
likely influenced the jury's verdict.
9. Appeal and Error--JNOV motion in subsequent trial--argument
concerning prior trial--issue abandoned
The defendant in an automobile accident case abandoned his
argument on appeal regarding the denial of his JNOV motion where
the appeal concerned the third trial and the argument in the
brief concerned the second trial. Defendant was not bound on
retrial by the evidence presented at the former trial and whether
the evidence at the third trial would support the motion cannot
be decided on the basis of the evidence presented at the former
trial. Moreover, the court in this case properly denied the
motion.
JOHN, Judge.
Defendant Charles William Lynch appeals judgment entered upon
a jury verdict in favor of plaintiff Patricia Annette Burchette
(plaintiff). We conclude the trial court did not err.
Pertinent facts and procedural history include the following:
On 2 November 1991, plaintiff was operating her automobile on Rural
Paved Highway 1229 in Warren County. Plaintiff Sally Burchette was
a passenger therein. A farm tractor with grain drill attached,
owned and operated by defendant, was parked partially on the
shoulder of the road and partially in plaintiff's lane of travel.
Plaintiff's vehicle collided with defendant's grain drill,
resulting in injuries to plaintiff.
Plaintiff filed the instant complaint 18 October 1994,
alleging defendant's negligence in parking the tractor and failing
to warn oncoming motorists thereof proximately caused plaintiff's
injuries. Defendant answered 28 November 1994, generally denying
negligence and asserting plaintiff's contributory negligence as a
defense. Defendant also counterclaimed against plaintiff seeking
a property damage recovery. Plaintiff replied, denying defendant's
claim and asserting defendant was accorded the last clear chance to
avoid the collision.
Trial of the case commenced 29 May 1996 (Trial I).
Defendant's renewed motion for directed verdict at the close of allevidence was denied. See N.C.G.S. § 1A-1, Rule 50(a) (1999)
. The
jury subsequently deadlocked on the issue of defendant's
negligence, but unanimously absolved plaintiff of contributory
negligence. The trial court ordered a mistrial on the negligence
issue and entered judgment on the verdict against defendant
regarding plaintiff's contributory negligence.
Defendant moved for judgment notwithstanding the verdict
(JNOV) and for new trial, see N.C.G.S. § 1A-1, Rules 50(b), (c),
which motions were denied 14 August 1996. Defendant subsequently
appealed the judgment and denial of his motions, which appeal was
dismissed as interlocutory. See Burchette v. Lynch, 128 N.C. App.
65, 493 S.E.2d 334 (1997).
A mistrial again occurred in February 1998 upon a second
jury's failure to agree on the issue of defendant's negligence(Trial II). Plaintiff Sally Burchette subsequently dismissed her
claims with prejudice 20 August 1998.
At a third trial commencing 24 August 1998 (Trial III), the
jury determined plaintiff was injured by the negligence of
defendant and awarded $120,000.00 in compensatory damages. A 28
August 1998 judgment was rendered reflecting the verdict.
Defendant moved for JNOV as well as for relief from judgment under
N.C.G.S. § 1A-1, Rule 60(b) (1999), which motions were denied by
order dated 9 October 1998. Defendant timely appealed both the
judgment and order, noting twenty-six assignments of error directed
at all three trials. Only twelve assignments of error are
addressed in defendant's brief to this Court; the remainder are
therefore deemed abandoned. See N.C.R. App. P. 28(b)(5)
(“[a]ssignments of error not set out in the appellant's brief . .
. will be taken as abandoned”).
[1]Defendant first contends the trial court erred during
Trial I by denying defendant's motions for mistrial as well as for
directed verdict and JNOV on both the negligence and contributory
negligence issues. Although not raised by the parties, we must
first determine the propriety of defendant's purported appeal in
this regard. See First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131
N.C. App. 242, 246, 507 S.E.2d 56, 59 (1998) (although parties
failed to raise issue, appellate court must sua sponte determine
whether appeal is properly before the court).
Given that Trial I eventually terminated in a mistrial on the
issue of defendant's negligence, his assertion the trial courterred by failing to declare a mistrial earlier in the proceedings
is without merit.
Defendant's motion was directed at plaintiff's inadvertent
reference to liability insurance in regard to property damage to
her automobile. Defendant could not have been prejudiced regarding
the negligence issue as that issue was not decided by the jury.
See Watson v. White, 309 N.C. 498, 507, 308 S.E.2d 268, 273-74
(1983) (although defendant's argument to jury improperly suggested
inability to pay verdict, error in allowing argument not
prejudicial where jury found plaintiff contributorily negligent and
thus did not reach issue of damages). To the extent defendant
argues resultant prejudice concerning the issue of plaintiff's
contributory negligence, we hold the trial court did not abuse its
discretion in denying defendant's mistrial motion. See State v.
McCarver, 341 N.C. 364, 383, 462 S.E.2d 25, 36 (1995), cert.
denied, 517 U.S. 1110, 134 L. Ed. 2d 482 (1996) (decision to grant
mistrial motion “is within the sound discretion of the trial court,
and its ruling will not be disturbed on appeal unless it is so
clearly erroneous as to amount to a manifest abuse of discretion”).
[2]Further, defendant cannot have been prejudiced by denial
of his JNOV motion on the issue of his negligence, given the
mistrial and subsequent retrial of the case on that issue. When a
trial court orders a new trial,
the case remain[s] on the civil issue docket
for trial de novo, unaffected by rulings made
therein during the [original] trial . . . .
Goldston v. Wright, 257 N.C. 279, 280, 125 S.E.2d 462, 463 (1962). Stated otherwise, a “mistrial results
in nullification of a
pending jury trial.” 75B Am. Jur. 2d Trial § 1713 (1992); see also
People v. Thompson, 379 N.W.2d 49, 56 (Mich. 1990) (“a hung jury
mistrial . . . is essentially a nullity”), cert. denied sub nom.
Thompson v. Foltz, 498 U.S. 971, 112 L. Ed. 2d 423 (1990).
Accordingly, any error on the part of the trial court in denying
defendant's motion regarding the negligence issue would thus be
harmless, as on retrial defendant would not be
bound by the evidence presented at the former
trial. Whether [his] evidence at the new
trial will support [a motion for directed
verdict] cannot now be decided.
Akzona, Inc. v. Southern Railway Co., 314 N.C. 488, 495, 334 S.E.2d
759, 763 (1985).
In short,
[d]efendant, in respect to the denial of his
motion for [JNOV], has nothing to appeal from,
for the very simple reason that in this
respect there is neither a final judgment nor
any interlocutory order of the superior court
affecting his rights.
Goldston, 257 N.C. at 280, 125 S.E.2d at 463. We therefore do not
consider defendant's purported appeal of denial of his JNOV motion
on the negligence issue proffered at Trial I which resulted in a
mistrial on that issue.
[3]However, defendant also moved for a directed verdict and
JNOV, see Abels v. Renfro Corp., 335 N.C. 209, 214, 436 S.E.2d 822,
825 (1993) (JNOV motion essentially renewal of earlier directed
verdict motion and same standard of review therefore applicable),
on the issue of plaintiff's contributory negligence. This issuewas indeed decided at Trial I although appeal thereon at the
conclusion of trial was premature in that
the issues of whether defendant negligently
injured plaintiff[] and what damages, if any,
plaintiff[ is] entitled to recover were not
answered by the jury,
Burchette, 128 N.C. App. at 67, 493 S.E.2d at 335.
However, the question is now ripe for appellate review because
a final judgment has been entered. See Floyd and Sons, Inc. v.
Cape Fear Farm Credit, 350 N.C. 47, 51, 510 S.E.2d 156, 158 (1999)
(“a party seeking to appeal from a nonappealable interlocutory
order must wait until a final judgment is rendered and may then
proceed as designated in” N.C.R. App. P. 3(d)); N.C.G.S. § 1-278
(1999) (“[u]pon an appeal from a judgment, the court may review any
intermediate order involving the merits and necessarily affecting
the judgment”).
Defendant argues plaintiff's testimony at Trial I established
her contributory negligence as a matter of law, and that the trial
court therefore erred by denying his directed verdict and JNOV
motions. We do not agree.
Defendant emphasizes plaintiff's testimony that she was
blinded by the headlights of an oncoming automobile for two to
three seconds prior to the collision, and relies upon our Supreme
Court's decision in McKinnon v. Motor Lines, 228 N.C. 132, 44
S.E.2d 735 (1947). McKinnon held that a driver who “ran in a
'blinded area' for two or three seconds,” but maintained his speed
and then rear-ended another vehicle, was contributorily negligent
as a matter of law. Id. at 136, 44 S.E.2d at 737. However, defendant ignores plaintiff's further testimony
that
immediately upon seeing the headlights of the approaching auto, she
“attempt[ed] to slow down,” “hit [her] brakes,” and did not take
her eyes “away from the roadway.” In McKinnon,
the plaintiff[] continued to drive some
distance after being “blinded” by the lights
of another vehicle . . . without attempting to
stop [his] vehicle[]. . . . The distinction in
the case[] relied on by defendant[] and this
case is that in the instant case plaintiff
immediately acted upon seeing the danger,
while in the case[] cited by defendant[] the
plaintiff[] continued in the same course of
action for some time and distance after being
faced with apparent danger.
White v. Mote, 270 N.C. 544, 553, 155 S.E.2d 75, 81 (1967).
In the light most favorable to plaintiff, see Abels, 335 N.C.
at 214-15, 436 S.E.2d at 825 (on JNOV motion, “trial court must
examine all of the evidence in a light most favorable to the
nonmoving party, [which] party must be given the benefit of all
reasonable inferences that may be drawn from that evidence”), the
evidence thus indicates plaintiff, unlike the plaintiff in
McKinnon, slowed and applied her brakes immediately upon seeing the
headlights of the approaching vehicle. We therefore cannot say her
actions constituted contributory negligence as a matter of law,
see White, 270 N.C. at 554, 155 S.E.2d at 82; see also Nicholson v.
American Safety Utility Corp., 346 N.C. 767, 774, 488 S.E.2d 240
244 (1997) (“[i]ssues of contributory negligence . . . are
ordinarily questions for the jury”), and the trial court did not
err in denying defendant's directed verdict and JNOV motions
asserting that argument. [4]Alternatively, defendant claims the trial court “had no
authority to enter judgment on the issues related to [plaintiff's]
contributory negligence.” This argument has not been properly
preserved for appellate review.
Following the jury's indication it was deadlocked regarding
defendant's negligence, the trial court directed that the jury
proceed to deliberate the issue of plaintiff's contributory
negligence. In the absence of the jury, the court then inquired if
either party objected to the jury's consideration of that issue.
Although plaintiff objected, defendant's counsel responded:
Your Honor, if the jury can come back with
Issue 2 with yes or no, I believe this Court
could use that as a basis to make rulings as a
matter of law even if they deadlock on Issue
1, if they consider Issue 2 and I would
request the Court to allow the jury to
consider Issue 2 as you have so instructed.
I would request that if the jury comes
back and they indicate that their verdict is
not unanimous then the Court inquire as to
Issue 1 and Issue 2 separately to see if they
have come back unanimously on Issue 2 and may
still be deadlocked on Issue 1.
Defendant therefore did not object to submission of the
contributory negligence issue to the jury, see N.C.R. App. P.
10(b)(1) (to preserve argument for appellate review, party must
present to trial court timely objection), and cites no authority
for the proposition that it was improper for the trial court to
enter judgment thereon in light of defendant's assent to
submission of the issue to the jury, see N.C.R. App. P. 28(b)(5)
(assignments of error “in support of which no . . . authority [is]
cited, will be taken as abandoned”). [5]Defendant next attempts to appeal denial of his JNOV
motion during Trial II
on the grounds that the plaintiff's evidence
as a matter of law failed to establish any
negligence on the part of the defendant and in
that the plaintiff's evidence as a matter of
law established the intervening negligence of
a third party as a matter of law.
However, Trial II ended in a mistrial as to the issues raised
by defendant in his JNOV motion, leaving no order from which to
appeal and resulting in no prejudice to defendant. See Goldston,
257 N.C. at 280, 125 S.E.2d at 463, and Watson, 309 N.C. at 507,
308 S.E.2d at 273-74. For the reasons set out in our discussion of
defendant's attempted appeal of denial at Trial I of his JNOV
motion on the issue of his negligence, therefore, we reject
defendant's appeal of denial of his JNOV motion at Trial II.
[6]Defendant's final assignments of error concern Trial III
and are generally reviewable on appeal. In the first, defendant
maintains the trial court erred in instructing the jury on the
issue of intervening negligence. We conclude the court did not err
in this regard.
Defendant urged at trial that the intervening negligence of
Alphonso Green (Green), operator of the oncoming automobile
encountered by plaintiff immediately prior to the accident, should
absolve defendant of liability. According to defendant, Green was
negligent in that the headlights of his vehicle “were on high-beam
and were never dimmed,” thus temporarily blinding plaintiff.
The trial court's instruction addressing the matter of
intervening negligence was as follows: Proximate cause is a cause which in a natural
and continuous sequence produces a person's
injuries and is a cause which a reasonable and
prudent person could have foreseen would
probably produce such injury or some similar
injurious result.
There may be more than one proximate
cause of an injury. Therefore, the Plaintiff
. . . need not prove that the Defendant's
negligence was the sole proximate cause of the
injuries.
The Plaintiff must prove by the greater
weight of the evidence only that the
Defendant's negligence was a proximate cause;
however, a natural and continuous sequence of
causation may be interpreted [sic] or broken
by the negligence of another operator of a
vehicle. This occurs when another operator of
a vehicle's negligence causes its own natural
and continuous sequence which interrupts,
breaks, displaces or supersedes the
consequences of the first operator's
negligence.
When I use the term “another operator” or
“second operator” in connection with this law,
I'm not referring to the Plaintiff . . . .
The Court has ruled that [plaintiff] was not
negligent. Under such circumstances, if you
so find, the negligence of another or second
operator, Alphonso Green, if you so find,
would be the sole proximate cause of an injury
and the negligence of the first operator would
not be a proximate cause of the injury.
(emphasis added).
Defendant insists the italicized portion of the charge
reflected “the court's bias towards and favoritism of the
plaintiff,” and further asserts the charge as a whole “incorrectly
stated the law . . . [and] was prejudicially edited, misleading and
confusing.”
In support of the latter argument, defendant points to Barber
v. Constien, 130 N.C. App. 380, 502 S.E.2d 912, disc. reviewdenied, 349 N.C. 227, 515 S.E.2d 699 (1998). In that case, this
Court held an intervening negligence jury instruction that
“fail[ed] to refer to the critical element of foreseeability” left
the jury “without proper guidance,” requiring a new trial. Id. at
386, 502 S.E.2d at 916.
However, during the charge conference sub judice, defendant
did not object to any portion of the trial court's proposed
intervening negligence instruction. Following the court's delivery
of its jury charge and dismissal of the jury to the jury room,
moreover, defendant reiterated his previous objections to other
portions of the charge and objected to the intervening negligence
instruction solely on grounds it “indicated [plaintiff] was not
negligent.” As defendant failed to object to the intervening
negligence instruction as omitting reference to foreseeability,
defendant has not preserved this issue for appellate review and we
decline to discuss it further. See N.C.R. App. P. 10(b)(2) (“party
may not assign as error any portion of the jury charge or omission
therefrom unless he objects thereto . . . stating distinctly that
to which he objects and the grounds of his objection”); see also
State v. Francis, 341 N.C. 156, 160, 459 S.E.2d 269, 271 (1995) (as
objections at trial “in no way supported” defendant's assignment of
error on appeal, defendant did not preserve error for appellate
review), and Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838
(1934) (where theory argued on appeal not raised in trial court,
“the law does not permit parties to swap horses between courts in
order to get a better mount [on appeal]”). [7]Assuming arguendo error in the portion of the trial
court's jury charge wherein it stated that “the [c]ourt has ruled
that [plaintiff] was not negligent,” moreover, such error was
harmless. We first note defendant objected to this portion of the
instruction at trial on grounds it “indicated [plaintiff] was not
negligent.” However, in his brief to this Court, defendant asserts
the instruction “shows the court's bias towards” plaintiff. See
Francis, 341 N.C. at 160, 459 S.E.2d at 271.
In any event, although it may have been preferable for the
trial court to state “plaintiff was determined not to be negligent
in a prior proceeding” rather than “the [c]ourt has ruled
[plaintiff] was not negligent,” defendant requested no such
amendment to the instruction. See N.C.R. App. P. 10(b)(2) and Wall
v. Stout, 310 N.C. 184, 188-89, 311 S.E.2d 571, 574 (1984) (purpose
of Rule 10(b)(2) is “to prevent unnecessary new trials caused by
errors in instructions that the court could have corrected if
brought to its attention at the proper time”). Further, the
essence of the court's statement, i.e., that plaintiff was not
negligent, was accurate, given the jury's verdict in her favor on
the contributory negligence issue at Trial I. Finally, rather than
confusing the jury, we believe the court's statement served to
clarify that the intervening negligence at issue was that of Green,
not plaintiff.
[8]Defendant next claims the trial court erred by allowing
improper jury argument. This contention is unavailing.
The trial court overruled defendant's objections to thefollowing comments by plaintiff's counsel:
Are you going to excuse [defendant] if it's
your family in that car? Are you going to
excuse [defendant] if it's your school
children in that car? Are you going to excuse
[defendant] if it's your sick and shut in aunt
that you want to visit . . . .
. . . .
That's 25,000 pounds of equipment on the
highway. Would [sic] do you want to say, do
you want at least a warning? Do you want a
chance? How many people in the Titanic wanted
a chance but they didn't have enough
lifeboats?
“[I]t is well established that counsel are accorded wide
latitude in argument to the jury.” Fallis v. Watauga Medical Ctr.,
Inc., 132 N.C. App. 43, 53, 510 S.E.2d 199, 206, disc. review
denied, 350 N.C. 308, ___ S.E.2d ___ (1999). The trial court,
which “sees what is done, and hears what is said,” is in a better
position to judge “the latitude that ought to be allowed to counsel
in the argument in any particular case.” State v. Bryan, 89 N.C.
531, 534 (1883).
Accordingly,
[i]t is left to the trial judge's sound
discretion to determine whether counsel has
abused [that] latitude accorded him in the
argument of hotly contested cases. [The
appellate courts] will not review the judge's
exercise of discretion unless there exists
such gross impropriety in the argument as
would likely influence the jury's verdict.
State v. Hockett, 309 N.C. 794, 799, 309 S.E.2d 249, 252 (1983).
Suffice it to state we do not conclude the challenged remarks sub
judice were so grossly improper as to have “likely influence[d] the
jury's verdict.” Id. [9]Lastly, defendant contends the trial court erred by
denying his JNOV motion following the jury verdict at Trial III.
Defendant's entire argument on this issue in his appellate brief
reads as follows:
Defendant procedurally appeals the court's
rulings on the defendant's Rule 50 motions
made during and after the third trial of this
cause in an effort to protect the defendant's
rights with respect to the entry of directed
verdict relating to the first trial in accord
with N.C.G.S. § 1A-1, Rule 50(b)(2).
Defendant hereby incorporates its arguments
from Issue IV [of the brief] as if fully set
forth word for word.
However, defendant's arguments in Issue IV of his brief were
directed to the trial court's denial of defendant's JNOV motion at
Trial II, a separate and distinct proceeding. We note again that
on retrial defendant
[wa]s not bound by the evidence presented at
the former trial. Whether [his] evidence at .
. . [T]rial [III would] support [a motion for
directed verdict] cannot . . . be decided,
Akzona, 314 N.C. at 495, 334 S.E.2d at 763, on the basis of the
evidence presented at the previous trial.
As defendant has advanced no argument regarding the evidence
presented at Trial III in relation to the JNOV motion made at that
trial, defendant has abandoned this assignment of error. See
N.C.R. App. P. 28(b)(5) (“[a]ssignments of error . . . in support
of which no reason or argument is stated or authority cited, will
be taken as abandoned”). Notwithstanding, we have reviewed the
record of Trial III and conclude the trial court properly denied
defendant's JNOV motion advanced at the conclusion thereof. SeeAbels, 335 N.C. at 214-15, 436 S.E.2d at 825.
No error.
Judges LEWIS and EDMUNDS concur.
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