CELESTE McNEELY,
Plaintiff,
v. Catawba County
No. 00CVS44
WILLIAM B. BOLLINGER,
Defendant.
Starnes and Killian, PLLC, Wesley E. Starnes and Blair E.
Cody, III, for plaintiff-appellant.
Robinson & Elliott, by William C. Robinson and Stephanie D.
Gacek, for defendant-appellee William B. Bollinger.
No brief filed for unnamed defendant State Farm Mutual
Automobile Insurance.
BIGGS, Judge.
Plaintiff Celeste McNeely appeals from a judgment entered upon
a jury verdict finding her contributorily negligent. As detailed
herein, we find no error in the judgment of the trial court.
Plaintiff filed this negligence action against defendant
William B. Bollinger, seeking damages for injuries she sustained
when her vehicle collided with defendant's vehicle. Defendant
timely answered denying the material allegations of the complaint.
State Farm Mutual Automobile Insurance Company, as an unnamed
defendant, also timely answered, denying the material allegations of the automobile collision involving plaintiff and asserting the
defense of contributory negligence against plaintiff. This action
was tried before Judge Noble and a duly empaneled jury during the
9 April 2001 civil session of Catawba County Superior Court.
The evidence of record tends to show that at approximately
5:15 p.m. on 24 July 1997, plaintiff was traveling eastbound on
Springs Road in Hickory, North Carolina. Defendant was traveling
on 18th Avenue, a roadway which intersected with Springs Road. He
subsequently came to a stop at the intersection of 18th Avenue and
Springs Road. Springs Road is a five-lane road, consisting of two
eastbound lanes, two westbound lanes and a turning lane in the
center. As plaintiff approached the intersection of Springs Road
and 18th Avenue, she moved from the eastbound inside lane of
travel, into the center turning lane, and proceeded into the
intersection. Plaintiff testified at trial that it was her
intention to turn left at Springs Road and 29th Street-- some ten
blocks away.
Simultaneously, defendant was waiting to enter Springs Road.
Since traffic was heavy, he waited until the cars traveling in the
two eastbound lanes of Springs Road slowed down to enter the
roadway. According to defendant, he was slowly entering the
roadway in an attempt to turn into one of the westbound lanes of
Springs Road when his vehicle was struck on the front, left fender
by plaintiff's vehicle. According to plaintiff, however,
defendant's car struck her vehicle on the right, front side as she
was traveling. After hearing all of the evidence and the arguments of
counsel, the jury returned a verdict in defendant's favor, finding
that plaintiff was contributorily negligent. From the judgment
entered upon this verdict, plaintiff appeals.
By her first assignment of error on appeal, plaintiff argues
that the trial court erred by submitting the issue of contributory
negligence to the jury. We cannot agree.
Contributory negligence has been defined as “the breach of
duty on of a plaintiff to exercise due care for his or her own
safety, such that the plaintiff's failure to exercise due care is
the proximate cause of his or her injury.” Prior v. Pruett, 143
N.C. App. 612, 622, 550 S.E.2d 166, 173 (2001). In North Carolina,
contributory negligence acts as a complete bar to plaintiff's
recovery of injuries resulting from defendant's negligence. Sawyer
v. Food Lion, Inc., 144 N.C. App. 398, 401, 549 S.E.2d 867, 869
(2001) (citing Cobo v. Raba, 347 N.C. 541, 545, 495 S.E.2d 362, 365
(1998). A defendant bears the “burden of proving contributory
negligence . . . and is entitled to have the issue submitted to the
jury if all the evidence and reasonable inference drawn therefrom
and viewed in the light most favorable to the defendant tend to
establish [] contributory negligence.” Wentz v. Unifi, Inc., 89
N.C. App. 33, 38, 365 S.E.2d 198, 201, disc. review denied, 322
N.C. 610, 370 S.E.2d 257 (1988).
In the case sub judice, defendant alleged that plaintiff was
contributorily negligent in that she breached the following
statutory duties of care: (1) failure to use ordinary care byfailing to keep a reasonable lookout pursuant to G.S. § 20-174; (2)
failure to use ordinary care by failing to keep her vehicle under
proper control pursuant to G.S. § 20-154(a)-(b); (3) failure to
decrease speed in order to avoid the collision pursuant to G.S. §
20-141(m); (4) operating a vehicle on a highway at a speed greater
than reasonable and prudent under the conditions then existing
pursuant to G.S. § 20-141(a); and (5) moving from a direct line
without first seeing that her movement could be made in safety
pursuant to G.S. § 20-154(a). Breach of any one of the above
statutory provisions is sufficient to bar plaintiff's recovery for
negligence. See generally, Hinnant v. Holland, 92 N.C. App. 142,
147, 374 S.E.2d 152, 155 (1988)(“[w]hen a statute sets a standard
of care for the protection of others, violation of that statute is
negligence per se”), disc. review denied, 324 N.C. 335, 378 S.E.2d
792 (1989); Powell v. Doe, 123 N.C. App. 392, 398, 473 S.E.2d 407,
412 (1996)(“It is generally recognized that violation of a § 20-
166-style statute is negligence per se if new injuries, or an
aggravation of original injuries, occurs after the hit and run
driver leaves the scene of an accident without rendering needed aid
to the injured person finding[.]”)
In Lewis v. Brunston, this Court stated,
The automobile driver on a dominant highway
approaching an intersecting servient highway
is not under a duty to anticipate that the
automobile driver on the servient highway
“will fail to stop as required by . . .
statute, and, in the absence of anything which
gives or should give notice to the contrary,
he will be entitled to assume and to act upon
the assumption, even to the last moment,”
that the automobile driver on the servientintersecting highway will obey the law and
stop before entering the dominant highway.
78 N.C. App. 678, 683, 338 S.E.2d 595, 599 (1986).
Notwithstanding,
the automobile driver on the servient
intersecting highway, is not under a duty to
anticipate that the automobile driver on the
dominant highway, “approaching the
intersection of the two highways, will fail to
observe the speed regulations, and the rules
of the road, and, in the absence of anything
which gives or should give notice to the
contrary, he is entitled to assume and to act
upon the assumption” that the automobile
driver on the dominant highway will obey “such
regulations and the rules of the road.”
Id.
In the light most favorable to defendant, the evidence tends
to show plaintiff admitted that, despite the heavy traffic
conditions, she was looking at the traffic light ahead and not at
the surrounding traffic; two other drivers stopped far enough away
from defendant's vehicle to allow defendant to get through traffic
to negotiate a turn onto Springs Road; defendant drove slowly as he
proceeded out onto Springs Road; defendant saw plaintiff only
seconds before they collided; once defendant saw plaintiff's
vehicle, he stopped his vehicle completely in order to avoid
hitting her; defendant's vehicle was protruding into the center
lane on Springs Road; and plaintiff testified that she was
accelerating at the time the collision occurred, and that she saw
defendant for a split second before the accident. Significantly,
at the point of the accident, plaintiff was traveling down the
center lane of Springs Road at the intersection of Springs Road and18th Street, although she was not going to turn until some ten
blocks ahead at 29th Street. Plaintiff testified that she
traveled in the center lane to “whip” around the cars backed up at
the light at 29th Street, so that she could make the green light.
We conclude that this evidence is sufficient to permit the
reasonable fact-finder to infer that plaintiff was negligent in the
operation of her motor vehicle, pursuant to one or more of the
statutory provisions as alleged by defendant. The trial court,
therefore, did not err in submitting the issue of contributory
negligence to the jury. This assignment of error is overruled.
By her second assignment of error, plaintiff argues that the
trial court erred when it gave an erroneous instruction regarding
her claim of negligence and then followed it with a curative
instruction. Plaintiff contends that the conflicting instructions
entitle her to a new trial. We disagree.
It is well settled that a correct charge is a fundamental
right of every litigant. Van Gelder Yarn Co. v. Mauney, 228 N.C.
99, 102, 44 S.E.2d 601, 603 (1947)(citing State v. Merrick, 171
N.C. 788, 88 S.E. 501, 505 (1916)); see State v. Jennings, 333 N.C.
579, 612, 430 S.E.2d 188, 205 (1993). Therefore, it must appear
with reasonable certainty that the court's error was corrected, its
harmful effect entirely removed, and the correct rule clearly fixed
in the minds of the jury in order for the verdict to stand. See
Jennings, 333 N.C. at 612, 430 S.E.2d at 205. While conflicting
instructions on a material point generally require a new trial,
“where the court inadvertently makes an error and expresslycorrects it before the jury retires, the error is rendered
harmless.” Goble v. Helms, 64 N.C. App. 439, 450, 307 S.E.2d 807,
815 (1983), disc. review denied, 310 N.C. 625, 315 S.E.2d 690
(1984). Finally, in considering the propriety of a jury charge,
this Court must consider the charge contextually and in its
entirety. Kewaunee Scientific Corp. v. Pegram, 130 N.C. App. 576,
582, 503 S.E.2d 417, 421 (1998).
In its initial charge, and in response to plaintiff's
attorney's request during the charge conference, the trial court
read a portion of N.C.P.I. 203.25. The court, however, immediately
recognized that N.C.P.I. 203.25 was not the applicable instruction,
and asked trial counsel for the correct pattern instruction. At
that time, plaintiff's attorney admitted that he had given the
court the “wrong” instruction during the trial conference and
offered the “right” instruction, which was N.C.P.I. 203.15. The
trial court then made the following statement to the jury:
Members of the jury, I had explained to you
the contentions of negligence, which are
failure to keep a reasonable lookout, failure
to keep the defendant's vehicle under proper
control. And mistakenly I had started to give
you the wrong instructions about what's
normally called a stop sign violation or
proceeding into the highway without -- without
yielding the right-of-way to vehicles on the
street. I had given you the wrong law. I had
given you the law for the vehicle that's
already on the street. Now I'm going to give
you the law for the vehicle that was in the
position that the defendant's vehicle was in.
That's what we're talking about is the
defendant's negligence. So please ignore that
part that I just said about the vehicle on the
highway. And this is the law about failing to
yield the right-of-way to vehicles on the
street.
The court went on to give the correct pattern instruction with
regards to plaintiff's contentions of defendant's negligence. Once
more, before the jury retired for deliberations, the trial court
spoke to his earlier misstatement:
Members of the jury, I apologize. . . . . I
did make a mistake in the jury instructions to
you. And I've tried the best I can while in
the middle of the instructions to straighten
it out and explain the error I made and the
difference. Now, I'm going to try one more
time. The other error I made was in
explaining to you the contentions of
negligence that the plaintiff contends about
the defendant's negligence.
The court proceeded to set forth the contentions of plaintiff as to
defendant's negligence along with the applicable jury instructions.
While the initial instruction here was clearly misplaced in
regards to plaintiff's contentions of defendant's negligence, we
note that plaintiff's counsel contributed to this error by giving
the court the wrong pattern jury instruction during the charge
conference. See Frugard v. Pritchard, 338 N.C. 508, 512, 450
S.E.2d 744, 746 (1994) (providing that “a party may not complain of
action which he induced[]”). In addition, the record reveals that
the trial court immediately discovered its error, promptly and
expressly retracted it, and twice recharged the jury on the point
in question. Viewing the instructions as a whole, we believe that
the correct rule of law as to plaintiff's contentions of
defendant's negligence was before the jury. In light of these
facts, we conclude that plaintiff cannot show prejudicial error in
the trial court's erroneous instruction. See id.
By her third assignment of error, defendant argues that thetrial court erred in regards to defendant's contentions as to
plaintiff's negligence by instructing the jury on N.C.P.I. 203.25.
Again, we disagree.
“It is the duty of the trial judge without any special
requests to instruct the jury on the law as it applies to the
substantive features of the case arising on the evidence.” Millis
Constructions Co. v. Fairfield Sapphire Valley, 86 N.C. App. 506,
509, 358 S.E.2d 566, 568 (1987). Further, “[u]pon request for a
special instruction '“correct in law and supported by the evidence,
the trial court must give the requested instruction, at least in
substance.”'” Barnard v. Rowland, 132 N.C. App. 416, 427, 512
S.E.2d 458, 466 (1999)(quoting State v. Thompson, 118 N.C. App. 33,
36, 454 S.E.2d 271, 273 (1993), disc. review denied, 340 N.C. 262,
456 S.E.2d 837 (1995)(citations omitted)). Finally, the statute
requiring a judge upon giving the charge to state the evidence and
explain the law arising therefrom, does not require contentions of
litigants to be stated; however, when the judge states the
contentions of one of the parties, he must fairly charge also as to
the contentions of the adversary litigant. Daniels v. Jones, 42
N.C. App. 555, 558, 257 S.E.2d 120, 122 (1979), disc. review
denied, 298 N.C. 567, 261 S.E.2d 120 (1979)(citing N.C.G.S. § 1-
180).
In the instant case, the trial court charged the jury as to
plaintiff's contentions regarding defendant's negligence, using
N.C.P.I. 203.15. The court also instructed the jury as to
defendant's contentions regarding plaintiff's negligence, usingN.C.P.I. 203.25, which is entitled “Right of Way of Operator on
Servient Street When Entering Intersection After Stopping.”
While plaintiff contends otherwise, we conclude that the
evidence in this case supported the N.C.P.I. 203.15 instruction as
to defendant's contentions concerning plaintiff's negligence.
Defendant was operating his vehicle on 18th Street, the servient
street; he came to a complete stop before proceeding into the
intersection of Springs Road, the dominant street; upon observing
plaintiff's vehicle, defendant immediately stopped his vehicle
before completely entering the turning lane on Springs Road;
defendant's vehicle was struck by plaintiff's vehicle as he entered
that turning lane; while traveling in the turning lane, plaintiff
was accelerating just seconds before the collision; plaintiff did
not see defendant's vehicle until a split second before the
collision; and plaintiff admitted that she was looking at the green
light ahead rather than at the oncoming traffic. As this
instruction was correct in law and supported by the evidence, this
assignment of error is also overruled.
Having concluded that the trial court properly instructed the
jury, we overrule plaintiff's fourth assignment of error by which
she argues that the trial court erred in denying her motion for
mistrial based upon alleged erroneous jury instructions.
No error.
Judges GREENE and HUDSON concur.
Report per Rule 30(e).
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