An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA05-1044


Filed: 2 May 2006


v .                         Mecklenburg County
                            No. 03 CVS 21282

    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 defendant-appellee.

    McGEE, Judge.

    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 afternoon.
    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. P. 28(b)(6).


    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 International, Inc., 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. We disagree.
    "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. Id. 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 outlook in the direction of travel; and he is held to the duty of seeing what he ought to have seen.'" Seaman v. McQueen, 51 N.C. App. 500, 503-04, 277 S.E.2d 118, 120 (1981) (quoting Jones v. Schaffer, 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 Bass 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. review denied, 359 N.C. 189, 605 S.E.2d 153 (2004) (citing Bass for the same issue). The instruction was also relevant to the present case and was supported by the evidence. Accordingly, the trial 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 instruction, in 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 instruction succinctly 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 sympathy."
    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?

        A: Yes.

        Q: And you sustained some injuries?

        A: Yes.

        Q: What injuries did you sustain?

        [COUNSEL FOR PLAINTIFF]: Objection. There is no counterclaim in this case.

        COURT: Overruled.

        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 no counterclaim.

        COURT: Overruled.

        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, arguendo, that plaintiff's objection properly preserved the other two issues of relevance and foundation, we find no error warranting reversal.
    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. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918 (2003), disc. review denied, 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 discretion. Id. at 439, 588 S.E.2d at 922. The plaintiff in Griffis argued on appeal that the driver's testimony was relevant and admissible because the two parties' injuries were identical. Id. 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 extent. Id. 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 that 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, arguendo, 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, 248 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 verdict). 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, 139 N.C. App. 370, 372, 533 S.E.2d 487, 490 (2000) (citing In re Will of Herring, 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. Id. at 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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