1. Motor Vehicles--automobile accident--instruction--duty to reduce speed
The trial court did not err in a negligence action arising out of an automobile accident by
refusing to give defendant's requested instruction on plaintiff's duty to reduce speed, because:
(1) there is no evidence at all that plaintiff failed to reduce his speed; (2) substantial evidence
showed that plaintiff did in fact reduce his speed when he encountered the van driven by
defendant on an entrance ramp; and (3) while there was testimony from a witness to the effect
that plaintiff pulled out in front of the witness and accelerated rapidly, there was no testimony by
that witness that plaintiff did not later reduce his speed in an attempt to avoid the collision.
2. Motor Vehicles--automobile accident--instruction--doctrine of sudden emergency
The trial court did not err in a negligence action arising out of an automobile accident by
instructing the jury on the doctrine of sudden emergency, because: (1) defendants pled
contributory negligence as a defense to plaintiff's claim, and evidence that plaintiff was
confronted with an emergency situation is relevant to this issue; and (2) plaintiff's complaint
alleged sufficient facts to give defendant fair notice that plaintiff was presented with a sudden
emergency when he got on an entrance ramp to the interstate.
3. Trials--automobile accident--mentioning insurance--motion for mistrial
The trial court did not abuse its discretion in a negligence action arising out of an
automobile accident by refusing to declare a mistrial after plaintiff mentioned insurance several
times, because: (1) the references were incidental and did not indicate directly as an independent
fact that defendant had liability insurance or that the pertinent insurer was his liability carrier;
and (2) the trial court gave adequate curative instructions to the jury following the testimony.
4. Motor Vehicles--automobile accident--defendant's driving record--negligent
entrustment
The trial court did not err in a negligence action arising out of an automobile accident by
allowing plaintiff to inquire into defendant's driving record in order to establish evidence
sufficient to warrant an instruction on negligent entrustment.
Kirkley Law Offices, P.L.L.C., by Joel L. Kirkley, III and
Timothy M. Stanley, for plaintiff-appellee.
Templeton & Raynor, P.A., by Carrie H. O'Brien and Amy F.
Wise, for defendant-appellants.
HUDSON, Judge.
This appeal arises out of an automobile accident that occurred
on 20 December 1997. On 18 December 2000, plaintiff, Jonathan
Campbell, filed a complaint against defendants Johnny McIlwain,
Ethan Allen, Inc., and D.L. Peterson, Inc., alleging that McIlwain
negligently operated a vehicle he was driving during the course and
scope of his employment with the other two defendants. On 1 July
2002, the trial court entered judgment on a jury verdict finding
defendant McIlwain negligent and awarding plaintiff $32,500 in
damages. Defendants appeal. For the following reasons, we find no
error.
On 20 December 1997, plaintiff was heading west on a 1986
Honda motorcycle on the I-277 entrance ramp in Charlotte, North
Carolina. As plaintiff rounded the curve on the ramp, he saw
defendant's van backing down the ramp into his path. Plaintiff,
who was traveling thirty to forty miles per hour, applied his
brakes, which caused his motorcycle to slide on the pavement,
ultimately hitting the rear of defendant's van. As a result of the
accident, plaintiff sustained injuries that required medical
treatment including knee surgery.
Defendant McIlwain disputed plaintiff's version of the
accident, claiming that as he was entering the on-ramp to I-277,
his van ran out of gas. He was attempting to move the van to the
left shoulder, when plaintiff rounded the corner and ran into his
van. McIlwain also introduced the deposition testimony of ArnoldSharar, who testified that just before entering the ramp, plaintiff
pulled out in front of him and accelerated rapidly.
In their first two arguments, defendants allege errors in the
jury instructions. To present an instruction error properly for
appellate review, the defendant must include in the record on
appeal “a transcript of the entire charge given.” N.C. R. App. P.
9(a)(1)(f). Here, the printed record on appeal includes neither
the requested instruction nor the charge given to the jury. Thus,
this issue is not presented in compliance with the Rules of
Appellate Procedure. While this rule may seem quite technical, it
serves an important practical purpose: it facilitates review of an
instruction issue by all three members of our panel in that the
parties file but a single copy of the trial transcript, but all
three members receive the printed record. Nonetheless, in our
discretion we undertake a review on the merits. N.C. R. App. P. 2.
[1] Defendants first contend that the trial court erred by
refusing to give a requested instruction on plaintiff's duty to
reduce speed. A party appealing a trial court's failure to give a
requested instruction “must show that substantial evidence
supported the omitted instruction and that the instruction was
correct as a matter of law.” State v. Farmer, 138 N.C. App. 127,
133, 530 S.E.2d 584, 588, disc. review denied, 352 N.C. 358, 544
S.E.2d 550 (2000). Here, defendants requested pattern jury
instruction 220.20A, which provides in pertinent part that:
the fact that a person is driving his vehicle at a speed
lower than the posted speed limit does not relieve him of
the duty to decrease his speed as may be necessary to
avoid colliding with any [vehicle] on the highway, and toavoid injury . . . .
N.C.P.I.--Civ. 220.20A. The trial court considered and denied this
request, instead instructing the jury as to reasonable and prudent
speed under the conditions in accordance with N.C.P.I.--Civ.
202.10. In so doing, the court stated:
THE COURT: I think in considering both of them, the
reasonable and prudent speed covers all the possibilities
that the jury may find in a clearer way.
Here, there is no evidence at all, let alone substantial
evidence, that plaintiff failed to reduce his speed. Quite to the
contrary, the substantial evidence in the record shows that
plaintiff did in fact reduce his speed when he encountered the van
on the entrance ramp. Plaintiff testified that as soon as he
rounded the curve and saw defendant's van backing up towards him,
he applied his brakes, which caused his motorcycle to slide and
strike the rear of the van. While defendant claims that this
instruction was warranted based upon the testimony of Mr. Sharar to
the effect that plaintiff pulled out in front of him and
accelerated rapidly, there is absolutely no testimony by Mr. Sharar
that plaintiff did not later reduce his speed in an attempt to
avoid the collision. Since the evidence did not justify the
requested instruction, we overrule this assignment of error.
[2] Defendants next argue that the trial court erred by
instructing the jury on the doctrine of sudden emergency.
Defendants contend that the emergency doctrine was not pled and no
evidence was presented warranting the instruction. We disagree.
This Court has previously held that a trial court “is requiredto state the law and apply the evidence thereto in regard to each
substantial and essential feature of the case, even in the absence
of a properly submitted request for special instructions.” White
v. Greer, 55 N.C. App. 450, 453, 285 S.E.2d 848, 851 (1982). The
sudden emergency doctrine provides that “one confronted with an
emergency is not liable for an injury resulting from his acting as
a reasonable man might act in such an emergency.” Rodgers v.
Carter, 266 N.C. 564, 568, 146 S.E.2d 806, 810 (1966). The Court
in Rogers noted further that “[t]he emergency is merely a fact to
be taken into account in determining whether he has acted as a
reasonable man so situated would have done.” Id.
Here, the defendants pled contributory negligence as a defense
to plaintiff's claim, thus raising the issue of whether plaintiff's
own negligence contributed to his injuries. Evidence that
plaintiff was confronted with an emergency situation, which was
properly admitted, is relevant to this issue. We further note
that, under the standard of notice pleading, plaintiff's complaint
alleged sufficient facts to give defendant fair notice that
plaintiff was presented with a sudden emergency when he got on the
entrance ramp to the interstate. Therefore, we overrule this
assignment of error.
[3] Next, defendants contend that the trial court erred by
refusing to declare a mistrial after plaintiff mentioned insurance.
For the following reasons, we disagree.
Generally, “[w]here testimony is given, or reference is made,
indicating directly and as an independent fact that defendant hasliability insurance, it is prejudicial, and the court should, upon
motion therefor aptly made, withdraw a juror and order a mistrial.”
Fincher v. Rhyne, 266 N.C. 64, 69, 145 S.E.2d 316, 319 (1965).
However, “there are circumstances in which it is sufficient for the
court, in its discretion, because of the incidental nature of the
reference, to merely instruct the jury to disregard it.” Id. at
69, 145 S.E.2d at 319-20. “The decision of whether a mistrial is
required to prevent undue prejudice to a party or to further the
ends of justice is a decision vested in the sound discretion of the
trial judge.” Medlin v. FYCO, Inc., 139 N.C. App. 534, 540, 534
S.E.2d 622, 626 (2000), disc. rev. denied, 353 N.C. 377, 547 S.E.2d
12 (2001) (holding that the trial court did not abuse its
discretion in denying defendant's motion for a mistrial based on a
witness' mention at trial of defendant's relationship with
defendant's insurer).
Applying the aforementioned rationale to the present case, we
hold that the trial court did not abuse its discretion by refusing
to order a mistrial. The first such instance complained of came on
direct examination of the plaintiff. When asked whether defendant
driver said anything to him after the accident, plaintiff
responded: “He apologized several times for the incident. He asked
me -- to see if we could handle this on an individual basis as
opposed to calling in the insurance companies.” Defense counsel
promptly objected and the court sustained, issuing a curative
instruction for the jury not to consider the answer. Later, on
cross-examination, defense counsel asked plaintiff when he signeda medical release. Plaintiff replied: “I initially signed it with
Debra Ship, the Traveler's adjuster, and then Darryl Robinson.”
Defense counsel objected and the court sustained, again issuing a
curative instruction to disregard the answer. Finally, defendants
take issue with a portion of the closing arguments, in which
plaintiff's counsel apparently began to refer to an insurance
carrier. We are unable to locate this passage in the transcript of
counsel's closing argument. However, after plaintiff's counsel
completed his closing argument, the following exchange appears:
MS. WOLFE [defense counsel]: I have one more thing, Your
Honor. Not that it is going to matter at this point,
because the word insurance has been said so many times
throughout this trial. I noticed that the plaintiff
started to say “Travelers.”
MR. KIRKLEY [plaintiff's counsel]: I did stop. I
apologize. I saw the adjuster, and I started to say it.
I did stop myself.
MS. WOLFE: I didn't ask for a curative response because
it has been said so many times. But once again, for the
fourth time, I just want to preserve the record and make
a motion to dismiss.
THE COURT: I heard Mr. Kirkley say “Trav.” I had no
idea what he was talking about.
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THE COURT: Like I say, I heard him say “trav.” I didn't
know what it meant. He didn't say insurance. I am going
to deny the motion at this time.
We find that these references were incidental, and did not indicate
directly, as an independent fact, that defendant had liability
insurance or that Traveler's was his liability carrier. Further,
we conclude that the trial court gave adequate curative
instructions to the jury following the testimony. Therefore, wehold that the trial court did not abuse its discretion, and we
overrule this assignment of error.
[4] argue that the trial court erred by allowing defendant
McIlwain to be questioned concerning his driving record. For the
following reasons, we disagree.
During cross-examination, plaintiff's counsel asked defendant
McIlwain whether he considers himself a safe driver. McIlwain
answered: “I try to be safe enough to where I don't infringe on
hurting other people. I occasionally consider myself to be the
type of driver -- if you ask me whether I get speeding tickets and
parking tickets, of course I do. It's not like I intend to get
them, but, yeah, it happens to the best of us.” Counsel for
plaintiff then followed by asking, “In fact, you have had 11
traffic citations; correct?” Defense counsel objected and the
court sustained and gave the jury a curative instruction.
Following arguments by both attorneys, the court ruled that it
would “allow [plaintiff's counsel] to ask about those citations
where Mr. McIlwain was found to have committed the acts alleged.
I am not going to allow any questions about any charges in which he
was not convicted. He cannot ask about something if he was not
convicted.” Thereafter, plaintiff's counsel asked McIlwain
regarding three prior speeding convictions and one unsafe movement
conviction to establish evidence sufficient to support an
instruction on negligent entrustment.
We find guidance on this issue in Swicegood v. Cooper, 341
N.C. 178, 459 S.E.2d 206 (1995), which involved a lawsuit overproperty damage that resulted from a crash between the plaintiff's
automobile (being driven by his son) and the defendant's van. The
plaintiff had given his son permission to drive the automobile on
this occasion. The trial court granted plaintiff's motion in limine
prohibiting evidence of prior speeding violations in regard to the
issue of contributory negligence based on negligent entrustment.
This Court held that as a matter of law traffic violations cannot
support a conclusion that a person is an incompetent or reckless
driver. Our Supreme Court disagreed, and in reversing the decision
of this Court, stated that:
While the driver in this case does not have convictions
for reckless driving or convictions that involve the use
of alcohol, his convictions nonetheless indicate that a
jury should determine whether he is a reckless or
incompetent driver likely to cause injury to others. In
the span of six years, this driver accumulated three safe
movement violations and six speeding convictions. The
plaintiff contends that having only one conviction for
speeding over sixty miles per hour mitigates the effect
of the other five, which are convictions for speeding
fifty miles per hour or below. We are not persuaded by
this argument. Speed limits exist to ensure the safety
of the driving public. They are set according to the
conditions of the road. Whether a driver exceeds the
limit by fifteen miles per hour in a thirty-five mile per
hour zone or a fifty mile per hour zone, he endangers
those around him.
Id. at 181, 459 S.E.2d at 207-08 (citations omitted). The Court
further held that “the jury should determine whether the plaintiff
knew or should have known the record and propensity of his son to
be a reckless driver.” Id. at 181, 459 S.E.2d at 208.
Thus, based upon Swicegood, we conclude that the trial court
did not err by allowing plaintiff to inquire into defendant
McIlwain's driving record in order to establish evidence sufficientto warrant an instruction on negligent entrustment.
No error.
Judges MCGEE and CALABRIA concur.
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