Appeal by plaintiff from judgment entered 31 March 2005 by
Judge Linwood O. Foust in Superior Court, Mecklenburg County.
Heard in the Court of Appeals 7 March 2006.
W. James Chandler for plaintiff-appellant.
The Bolster Law Firm P.A., by Jeffrey S. Bolster, for
This case arises from a motor vehicle accident that occurred
at the intersection of Carmel Road and Fairview Road in Charlotte,
N.C., on 24 November 2003. Plaintiff and defendant were traveling
in opposite directions on the inside lanes of Fairview Road. At
the intersection with Carmel Road, plaintiff made a left turn and
collided with defendant's vehicle, which was proceeding straight
ahead. Plaintiff filed suit against defendant, alleging that
defendant entered the intersection in disobedience to a red traffic
light. Plaintiff sought recovery for personal injuries and
property damage arising out of the collision.
There was conflicting evidence at trial regarding the color of
the traffic light in each party's direction of travel. Plaintifftestified that as she approached the intersection, her traffic
light was red. Plaintiff stopped her vehicle at the light and
shifted her car into neutral. When a green left-turn arrow
appeared, plaintiff shifted into second gear and proceeded to turn
left into the intersection onto Carmel Road. Defendant testified
that her traffic light was yellow as she approached the
intersection, and as she proceeded straight through the
intersection, the light turned red as she was "two-thirds of the
way into the intersection." Defendant recalled the collision with
plaintiff occurred "[r]ight at the same time" that defendant's
light changed to red. Traffic engineer Bill Dillard (Dillard)
testified that defendant's yellow light would have lasted 4.7
seconds. Dillard explained all of the traffic lights at the
intersection would have been simultaneously red for 1.5 seconds,
after which plaintiff's lane would have received a green left-turn
arrow. Dillard further explained that the light sequence would
have "skipped" to a green left-turn arrow only if there had been no
traffic present on Carmel Road. Evidence at trial tended to show
the collision occurred at approximately 5:17 p.m. on a Monday
Plaintiff alleged in her complaint that defendant's vehicle
appeared "suddenly and without warning" and testified that she did
not see defendant's vehicle until "[a] split second" before the
collision. On cross-examination, plaintiff testified there were no
obstructions to plaintiff's view of the intersection, which was
level and straight. After hearing the evidence, the jury returneda unanimous verdict in favor of defendant, finding that plaintiff's
own negligence contributed to her injuries. Plaintiff's motions
for judgment notwithstanding the verdict and for a new trial were
denied. Judgment on the jury's verdict was entered on 31 March
2005. From the judgment, plaintiff appeals. On appeal, plaintiff
argues four assignments of error. Plaintiff's fifth assignment of
error, not argued in her brief, is deemed abandoned. N.C.R. App.
Plaintiff first argues the trial court abused its discretion
in instructing the jury on the issue of contributory negligence.
Plaintiff concedes that "[i]t is an elementary principle of law
that the trial judge must submit to the jury such issues as are
necessary to settle material controversies raised in the pleadings
and supported by the evidence." Uniform Service v. Bynum
, 304 N.C. 174, 176, 282 S.E.2d 426, 428 (1981).
Plaintiff argues the evidence in the present case did not support
the issue of contributory negligence and, therefore, the trial
court abused its discretion in submitting the issue to the jury.
"In determining the sufficiency of evidence to justify the
submission of an issue of contributory negligence to the jury, [the
appellate court] must consider the evidence in the light most
favorable to the defendant and disregard that which is favorable to
the plaintiff." Prevette v. Hospital
, 37 N.C. App. 425, 427, 246
S.E.2d 91, 92 (1978). "'If different inferences may be drawn fromthe evidence on the issue of contributory negligence, some
favorable to [the] plaintiff and others to the defendant, it is a
case for the jury to determine.'" Id
. (quoting Bell v. Maxwell
246 N.C. 257, 261-262, 98 S.E.2d 33, 36 (1957)).
Our Supreme Court has stated that "even though a driver is
faced with a green light, the duty rests upon [the driver] to
maintain a reasonable and proper lookout for other vehicles in or
approaching the intersection." Beatty v. Bowden
, 257 N.C. 736,
739, 127 S.E.2d 504, 506 (1962). In Love v. Singleton
, 145 N.C.
App. 488, 550 S.E.2d 549 (2001), our Court reversed summary
judgment for the plaintiffs on the issue of liability where the
plaintiff-driver testified in a deposition that she checked the
traffic light and verified that it was green before proceeding
toward the intersection. Id
. at 490, 550 S.E.2d at 550. The
defendant, meanwhile, turned left at the intersection pursuant to
a yellow light and into the path of travel of the plaintiff-driver.
Where there was evidence that the plaintiff-driver did not
notice the defendant's vehicle until the plaintiff-driver was one
car length from the intersection, our Court held that, in viewing
the evidence in the light most favorable to the defendant, a
reasonable juror could conclude that the plaintiff-driver was
contributorily negligent by proceeding into the intersection
without keeping a proper lookout. Id
. at 492, 550 S.E.2d at 551-
52. Even if the plaintiff-driver "had the benefit of a green
light, which [was] in dispute, she nonetheless had the obligation
to maintain a proper lookout and should not have relied blindly onthe green light." Id
. at 492, 550 S.E.2d at 552. "'It is the duty
of the driver of a motor vehicle not merely to look
, but to keep an
in the direction of travel; and he is held to the duty of
seeing what he ought to have seen.'" Seaman v. McQueen,
App. 500, 503-04, 277 S.E.2d 118, 120 (1981) (quoting Jones v.
, 252 N.C. 368, 375, 114 S.E.2d 105, 110-11 (1960)).
In the present case, the uncontroverted evidence showed that
there were no obstructions to plaintiff's view of the intersection;
that plaintiff left no skid marks prior to impact; that the impact
occurred in defendant's lane of travel; that plaintiff turned left
into defendant's path of travel; that plaintiff's vehicle was the
first vehicle from her lane to proceed into the intersection; and
that there were no vehicles traveling in front of defendant as
defendant traveled through the intersection. This evidence, when
viewed in the light most favorable to defendant, is sufficient for
a jury to infer that plaintiff was contributorily negligent in one
or more of the ways alleged by defendant, i.e., that plaintiff (1)
failed to keep a proper lookout; (2) failed to use a degree of care
that a reasonable and prudent person would have used under the
circumstances; and/or (3) failed to keep her vehicle under proper
control. Therefore, the trial court did not abuse its discretion
in submitting the issue of contributory negligence to the jury.
This assignment of error is overruled.
Plaintiff further argues the trial court abused its discretion
in allowing defendant's special jury instruction on the issue ofcontributory negligence. In accordance with N.C. Gen. Stat. § 1A-
1, Rule 51(b), defendant requested a special jury instruction
comprised of language from Bass v. Lee
, 255 N.C. 73, 120 S.E.2d 570
(1961), on the issue of a motorist's duties when facing a green
traffic light. Over objection, the trial court granted defendant's
request. The requested passage from Bass
appears in a footnote to
Pattern Jury Instruction 203.30.
Our Supreme Court has held that when a party requests a
special instruction that is "correct in itself and supported by the
evidence, the trial court, while not obliged to adopt the precise
language of the [request], is nevertheless required to give the
instruction, in substance at least[.]" Calhoun v. Highway Com.
208 N.C. 424, 426, 181 S.E. 271, 272 (1935). A trial court's
failure to give such an instruction, "either in direct response to
the [request] or otherwise in some portion of the charge," will
constitute reversible error. Id.
In the present case, the
requested language from Bass
was correct in itself, in that the
opinion is recognized authority on the issue of a motorist's
duties when facing a green traffic light under North Carolina law.
See, e.g., Beatty
, 257 N.C. at 739, 127 S.E.2d at 506 (citing Bass
on the issue of a motorist's duty when approaching a green light);
Kummer v. Lowry
, 165 N.C. App. 261, 264, 598 S.E.2d 223, 226, disc.
, 359 N.C. 189, 605 S.E.2d 153 (2004) (citing Bass
the same issue). The instruction was also relevant to the present
case and was supported by the evidence. Accordingly,
court was required to give the special instruction "in substance atleast." Calhoun
, 208 N.C. at 426, 181 S.E. at 272.
Plaintiff argues that in giving the Bass
addition to the pattern instruction, the trial court unfairly
emphasized defendant's claim of contributory negligence. Plaintiff
contends the trial court fulfilled its duty by giving the substance
of the Bass
instruction when it gave the pattern instruction, and
therefore abused its discretion in giving duplicate instructions.
We disagree. Contrary to plaintiff's contention that the special
instruction requested by defendant merely duplicated the pattern
jury instruction, a careful analysis of both instructions reveals
that the language from Bass
elaborates on a motorist's duties at a
green light and provides additional clarity and reasoning not found
in the pattern instruction. As read to the jury, the language
requested from Bass
specifies, inter alia
, that a motorist's duties
are "not relieved by the presence of an electronically controlled
traffic signal," that a motorist "cannot go forward blindly even in
reliance on [a] traffic signal," and that a green light grants a
motorist "qualified permission to proceed lawfully and carefully"
through an intersection. The Bass
concluded: "In other words, not withstanding a favorable light the
fundamental obligation of using [due] and reasonable care applies."
We hold the trial court did not abuse its discretion in giving a
special instruction that was correct, relevant, and required by
statute and case law. This assignment of error is overruled.
Plaintiff next argues the trial court committed reversibleerror in allowing defendant to testify about injuries defendant
sustained in the collision. Plaintiff contends that because
defendant made no counterclaim of injuries or damages, did not
dispute the injuries suffered by plaintiff, and did not lay a
proper foundation for her testimony, defendant's testimony was
nothing more than a "prejudicial attempt to reach for juror
Over plaintiff's objection, the trial court permitted
defendant to testify about the extent of injuries she claimed to
have suffered as a result of the accident:
Q: And you would describe this impact as a
pretty significant impact, is that right?
Q: And you sustained some injuries?
Q: What injuries did you sustain?
[COUNSEL FOR PLAINTIFF]: Objection. There is
no counterclaim in this case.
Q: What injuries did you sustain?
A: A shattered disc in my back.
[COUNSEL FOR PLAINTIFF]: Objection, Your
Honor. I mean now all of a sudden we are
totally beyond the pleadings and totally
beyond any discovery and she is talking about
a shattered disc with no medical evidence and
A: I had a shattered disc in the middle of my
back and I had a cracked tooth which required
a bridge. And I had extensive bruising fromthe air bag to the insides of both of my arms,
and I had abrasions on my chin, my face. My
nose was swollen across my face. I was cut
inside my mouth where the air bag pushed my
teeth into my lips. I had bruising to my ribs
from the seat belt and across my collar bone
from the seat belt.
We note that plaintiff's objection at trial did not state a
particular evidentiary rule or principle upon which plaintiff's
objection was based. Although not required to cite a specific rule
of evidence, a party must state the specific grounds for an
objection at trial. N.C.R. App. P. 10(b)(1). On appeal,
plaintiff seems to argue three grounds for her objection: (1)
relevancy, (2) undue prejudice, and (3) lack of proper foundation.
We find nothing in the language of plaintiff's objection to
preserve the issue of undue prejudice. Accordingly, we need not
address this argument. N.C.R. App. P. 10(b)(1). Assuming,
, that plaintiff's objection properly preserved the other
two issues of relevance and foundation, we find no error warranting
It is well established that a verdict or judgment may not be
set aside based upon mere error. Glenn v. Raleigh
, 248 N.C. 378,
383, 103 S.E.2d 482, 487 (1958). To have a judgment set aside, an
appellant must establish not only that the ruling complained of was
in error, but that it was "material and prejudicial and that a
different result likely would have ensued[.]" Id
. In trying to
establish error as to relevancy, plaintiff analogizes to Griffis v.
, 161 N.C. App. 434, 588 S.E.2d 918 (2003), disc. review
, 358 N.C. 375, 598 S.E.2d 135-36 (2004), in which our Courtruled that the trial court's refusal to allow the plaintiff-
passenger to cross-examine a defendant-driver regarding injuries
the driver sustained in the accident was not an abuse of
at 439, 588 S.E.2d at 922. The plaintiff in
argued on appeal that the driver's testimony was relevant
and admissible because the two parties' injuries were identical.
. In finding no error, this Court reasoned that the defendant's
testimony was not relevant in that it would not have tended to show
that the parties, with different medical histories, thresholds for
pain, and susceptibility to injury, were injured to the same
. However, in Dunn v. Custer
, 162 N.C. App. 259, 267,
591 S.E.2d 11, 17 (2004), our Court clarified that the Griffis
opinion "does not stand for the proposition that evidence of
another's injuries [is] per se
irrelevant under any and all factual
circumstances but merely reiterates that evidence is evaluated
according to established standards of legal relevancy, Rule 401,
and undue prejudice, Rule 403."
Pursuant to Rules 401 and 403 of
the North Carolina Rules of Evidence,
our Court held in Dunn
the trial court did not err in admitting testimony of a passenger's
injuries for the stated purpose of showing the force of the impact
which injured the plaintiff. Dunn
, 162 N.C. App. at 267, 591
S.E.2d at 17.
Under Rule 401, evidence is relevant if it has "any tendency
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401(2005). This Court has stated that "even though a trial court's
rulings on relevancy technically are not discretionary and
therefore are not reviewed under the abuse of discretion standard
applicable to Rule 403, such rulings are given great deference on
appeal." State v. Wallace
, 104 N.C. App. 498, 502, 410 S.E.2d 226,
228 (1991), cert. denied
, 506 U.S. 915, 121 L. Ed. 2d 241 (1992).
Under this deferential standard, we hold that the trial court did
not err in determining the challenged evidence was relevant.
On the issue of laying a proper foundation, even assuming,
, that defendant's testimony lacked the necessary
foundation for admission, plaintiff has not shown that defendant's
testimony, which was relatively brief and not argued during closing
arguments, likely changed the outcome of the trial. See Glenn
N.C. at 383, 103 S.E.2d at 487. A review of the record reveals
plenary evidence of the force of the impact, as well as evidence to
support an inference of plaintiff's contributory negligence, even
absent defendant's testimony as to her injuries.
Plaintiff's final argument is that the trial court erred in
denying plaintiff's motion for judgment notwithstanding the verdict
(JNOV), or, in the alternative, plaintiff's motion for a new trial.
At trial, plaintiff moved for JNOV and for a new trial based upon
errors of law committed in the trial court proceedings.
A JNOV is essentially a renewal of a motion for directed
verdict, and the same standard governs the trial court's
consideration. Bryant v. Nationwide Mut. Fire Ins. Co.
, 313 N.C.362, 368-69, 329 S.E.2d 333, 337-38 (1985). A trial court must
view all of the evidence supporting the nonmovant's claim as true,
and must consider the evidence in the light most favorable to the
nonmovant, giving the nonmovant the benefit of every reasonable
inference that may be drawn therefrom. Id
. at 369, 329 S.E.2d at
337-38. On appeal, our Court applies a de novo
standard of review.
Monin v. Peerless Ins. Co.
, 159 N.C. App. 334, 340, 583 S.E.2d 393,
397 (2003); see Maxwell v. Michael P. Doyle, Inc.
, 164 N.C. App.
319, 323, 595 S.E.2d 759, 762 (2004) (holding that a de novo
standard of review governs an appeal of a motion for directed
). Based upon our review of the record, we hold the trial
court properly denied the motion for JNOV.
"Generally, a motion for a new trial is addressed to the sound
discretion of the trial court, and its ruling will not be disturbed
absent a manifest abuse of that discretion. . . . However, where
the motion involves a question of law or legal inference, our
[Court's] standard of review is de novo
." Kinsey v. Spann
N.C. App. 370, 372, 533 S.E.2d 487, 490 (2000) (citing In re Will
, 19 N.C. App. 357, 359-60, 198 S.E.2d 737, 739-40
(1973)). In the present case, plaintiff based her motion for a new
trial on the ground that the trial court committed various errors
of law. Because plaintiff's motion included alleged errors of law,
we review the trial court's denial of the motion de novo
373, 533 S.E.2d at 490. The alleged errors upon which plaintiff
based her motion for a new trial are the same alleged errors
reviewed in previous sections of this opinion: (1) the trialcourt's submission of the issue of contributory negligence to the
jury, (2) the trial court's granting of defendant's request for a
special instruction, and (3) the admission of defendant's testimony
about her injuries. As discussed above, we find none of the
alleged errors to be prejudicial errors warranting reversal.
Accordingly, we hold the trial court properly denied plaintiff's
motion for a new trial.
No prejudicial error.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
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