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2. Automobiles_accident on snowy road_sudden emergency instruction_erroneously
given_awareness of risk
The trial court erred by giving a sudden emergency instruction in a case arising from a
traffic accident on a snowy road. Because defendant knew or should have known that the snow
could become ice in some areas, the mere fact that he did not see the icy patch in advance of
hitting it is insufficient to establish that he was confronted with a sudden emergency.
Appeal by Plaintiff from judgment entered 7 February 2005 by
Judge W. Osmond Smith, III, in Durham County Superior Court.
Heard in the Court of Appeals 12 April 2006.
Thomas, Ferguson & Mullins, L.L.P., by Jay H. Ferguson, for
Plaintiff-Appellant.
Law Offices of Douglas F. DeBank, by Douglas F. DeBank, for
Defendant-Appellee.
STEPHENS, Judge.
Plaintiff appeals from a judgment of the trial court which
dismissed his lawsuit with prejudice after a jury found in favor
of Defendant. In support of his appeal, Plaintiff brings forward
two assignments of error relating to the trial judge'sinstructions to the jury. For the reasons stated herein, we
reverse and remand for a new trial.
At trial during the 31 January 2005 session of Civil
Superior Court of Durham County, the evidence tended to show that
on 9 January 2001, Plaintiff left his home in Pittsboro about
7:00 a.m. en route to his job as an automotive mechanic in Chapel
Hill. He traveled the same direction as usual which took him
northbound on Jones Ferry Road. The sun was not quite up yet,
but Plaintiff could see without lights. It had snowed the
previous evening, and there was a light dusting of snow on the
ground and the roadway. As Plaintiff proceeded north, he saw
Defendant approaching in the southbound lane of travel. Jones
Ferry Road in that area is a two-lane, narrow country road[.]
Looking north, the road is a straight shot. The speed limit is
fifty-five miles per hour, but due to the snowy conditions,
Plaintiff was driving thirty to thirty-five miles per hour. He
testified that he felt his speed was a safe, manageable speed .
. . given the conditions[,] and was a speed that would enable
him to keep control of his vehicle, a 1994 Toyota truck.
When Plaintiff was about twenty to twenty-five feet away
from Defendant, he saw Defendant's front passenger wheel going
off the surface of the road. Plaintiff slowed down and eased his
vehicle further toward the right shoulder. He then observedDefendant's wheels turning to get back on the road. Within
fifteen to twenty feet of Plaintiff, Defendant's car, a 1996 Ford
Escort, shot across the road and struck Plaintiff's truck,
causing it to turn over on its side. The point of impact was
primarily the front quarter panel of Plaintiff's truck and head
on, . . . right up the center of Defendant's car. The collision
occurred in Plaintiff's lane of travel.
Plaintiff's wife, Norma Sobczak, also drove on Jones Ferry
Road that morning on her way to work. She testified that there
was a light dusting of snow on the ground, but she felt
comfortable enough driving. She said the sun had not yet come
up, but it was nevertheless light enough to see and she could
still see a little bit of the snow[] on the road. Mrs. Sobczak
traveled to the scene of her husband's accident, where she
observed Defendant's car in the middle of the road and
Plaintiff's truck on the side of the road.
Timothy Horne, an investigator with the Orange County
Sheriff's Department, arrived on the scene just after the
accident occurred. He came onto Jones Ferry Road headed
southbound, traveling in the same direction as Defendant. Deputy
Horne testified that the sun was not totally up[,] but it was
light enough that he could see. Even though there was a light
dusting of snow on the roadway, he could make out the center lineand shoulder. He also observed tracks in the snow where cars had
been traveling through it and noted that the snow was deeper in
some areas than others. He said he could distinguish between the
car tracks and the surrounding area, and that he had no trouble
seeing the areas that were snowy and icy as he drove to the
accident scene.
At the scene, Deputy Horne, who is related to Plaintiff by
marriage, saw Plaintiff's truck flipped onto the passenger side
in the northbound lane of
travel and Defendant's car in the
southbound lane, close to the center line. Plaintiff told Deputy
Horne that a car had crossed into his lane and struck his truck.
Deputy Horne then identified the other driver as Defendant.
According to Deputy Horne, Defendant told him that he was on his
way to work and as he was going around a corner, he must have
been going a little too fast and he slid over and hit
[Plaintiff][.]
Bobby Price of the North Carolina Highway Patrol received a
call at 7:18 a.m. for emergency assistance at the accident scene.
He testified it was still dawn at that time, but the sun was
breaking over the horizon real good[] and he could see without
lights. Officer Price traveled to the scene in the same
direction as Defendant had driven. He testified that there was
a lot of ice and black ice on Jones Ferry Road[,] explainingthat there would be clear stretches and then shaded areas that
were pretty consistent with ice. The road conditions required
him to drive slowly. When he arrived on the scene, Plaintiff had
already been taken to the emergency room. He interviewed
Defendant about what had happened and had Defendant prepare a
written statement, which said: I was heading southbound coming
out of a turn. My car got on the ice patches and was caused to
start fishtailing. . . . I could not gain control and crossed the
line and hit an oncoming vehicle.
Officer Price prepared a diagram of the accident scene and,
during his investigation, determined that the collision occurred
in the northbound lane. Defendant told Officer Price that he was
traveling approximately thirty to thirty-five miles per hour
before the accident. Officer Price issued a citation to
Defendant for exceeding a safe speed while driving on ice.
Greg Tilley, a first responder on the scene, testified that
we were in a bad weather, severe weather, response. . . . And
upon dispatch, they let us know that the roads were bad and we
need[ed] to proceed with caution. He described the roadway as
an icy, snowy condition. Even though it was early morning, the
light conditions were [g]ood[,] and he had no problem seeing as
he drove to the scene. He stated that you could definitely see
patches of different things on the road the whole way over, and the conditions were very obvious. Mr. Tilley said that
Defendant made a comment . . . to the effect that, . . . maybe
speed had something to do with the accident, because of the road
conditions.
Mary Stoffregen, an elementary school teacher, testified
that she was following Plaintiff's truck when Defendant struck
it. She described the road conditions as slippery and
testified that, as she drove, she was wondering why school had
not been delayed. She stated further that she was not feeling
safe driving to school on the roads.
Defendant testified that he left home at 6:40 a.m. to get to
his job site early to turn on the heaters, which was one of his
responsibilities. Defendant was not due at work until 8:00 a.m.,
but he ordinarily arrived between 7:20 and 7:30 a.m. His commute
usually took him thirty-five to forty minutes. He had been
working at this particular job site for about seven months and
always took the same route to work. On this morning, Defendant
observed a dusting of snow on his car and left early due to the
weather conditions. He was driving in third gear with his
headlights on and his windshield wipers operating, and was going
approximately thirty to thirty-five miles per hour with both
hands on the steering wheel. Defendant described the road on
which he was traveling as twist[ing] and turn[ing]. He noticedthe dusting of snow on Jones Ferry Road and testified that it
was hard to somewhat make out[.] He described Jones Ferry Road
as a very narrow road, [with] very little room for error, even
on a good day.
Defendant estimated that he traveled approximately four
miles on Jones Ferry Road before the accident occurred and said
that, during those four miles, he did not encounter any slipping,
sliding, or spinning of his wheels and did not com[e] anywhere
close to losing control of his vehicle. When asked whether
there was any black or hidden ice, or ice he could not see,
Defendant responded, [N]othing that I could really make out,
other than you could see, . . . where the snow was, and, of
course, with the tire tracks through there, knowing . . . it had
possibly been compacted down into ice.
As Defendant came out of a bend into the straightaway, he
saw a car quit[e] a distance in front of him slide just a
little bit and apply its brakes. He estimated that the car was
thirty to forty yards ahead of him. Defendant then immediately
thought, okay, there's ice coming. Defendant testified that he
put his clutch in and approached the ice. He said that putting
the clutch in pulled power away from the vehicle[,] but he did
not know if the car slowed down. When he hit the ice, his car
slid and he did not feel like he had any control over hisvehicle. Defendant tried to regain control of his wheels by
steering off the road onto the right shoulder. However, when his
car hit the shoulder, it bounced, came back onto the road, and
crashed into Plaintiff's vehicle. Defendant testified that it
was his intent to get off the road and stop his vehicle. He
testified further
that he did not see the ice before he hit it,
and he had not seen any ice patches on Jones Ferry Road during
his entire drive that morning before the accident.
Defendant denied telling Deputy Horne that he must have been
going too fast. He told Officer Price that he did not want to
miss work to attend his court date for the citation he received.
Officer Price explained that Defendant could pay his ticket off
or attend his court date.
Defendant testified that he elected to
pay the ticket off because he couldn't afford to miss work. He
did not intend to admit fault or responsibility by doing so. He
believed that if he paid the ticket off, it was gone. At
trial, Defendant denied responsibility for the accident.
Plaintiff was taken by ambulance to UNC Hospital where he
was admitted for treatment of a compression fracture of his
spine. He incurred total medical expenses of $13,208.65 and was
out of work for four months.
On 3 February 2005, after instructions, the trial judge sent
the case to the jury. The negligence instruction given by thejudge, in pertinent part, was as follows:
[T]he plaintiff must prove by the greater
weight of the evidence that the defendant was
negligent and that such negligence was a
proximate cause of the plaintiff's injuries.
Negligence refers to a person's failure
to follow a duty of conduct imposed by law.
Every person is under a duty to use ordinary
care to protect himself and others from
injury. . . . [O]rdinary care means that
degree of care which a reasonable and prudent
person would use under the same or similar
circumstances to protect himself and others
from injury. A person's failure to use
ordinary care is negligence.
Every person is also under a duty to
follow standards of conduct enacted as laws
for the safety of the public. A standard of
conduct established by safety statute must be
followed. A person's failure to do so is
negligence in and of itself.
A person who, through no negligence of
his own, is suddenly and unexpectedly
confronted with imminent danger to himself or
others, whether actual or apparent, is not
required to use the same judgment that would
be required if there were more time to make a
decision. The person's duty is to use that
degree of care which a reasonable and prudent
person would use under the same or similar
circumstances.
If, in a moment of sudden emergency, a
person makes a decision that a reasonably
prudent person would make under the same or
similar circumstances, he does all that the
law requires, even if in hindsight some
different decision would have been better or
safer.
If, in a moment of such sudden
emergency, an operator uses that degree of
care which a reasonably prudent person would
use under the same or similar circumstance,
he would not be negligent even though he may
have violated a standard of conductestablished by safety statute. In other
words, an operator's conduct which might
otherwise be negligent in and of itself would
not be negligent if it results from a sudden
emergency that is not of the operator's own
making.
The judge also charged the jury on Plaintiff's specific
contentions of negligence, that (1) Defendant failed to use
ordinary care by failing to keep a reasonable lookout, (2)
Defendant failed to use ordinary care by failing to keep his
vehicle under proper control, and (3) Defendant violated a safety
statute by operating his vehicle at a speed greater than was
reasonable and prudent under the conditions then existing. He
included the following:
When the conditions existing at the
scene, such as ice, and/or snow, on the
roadway, increase the danger by comparison to
that existing under normal conditions, the
care required of the operator is
correspondingly increased. . . .
The mere skidding of a vehicle does not
by itself imply negligence. However, you may
consider skidding as some evidence of
negligence when the vehicle skids
because[](a) the vehicle is operated at a
speed in excess of that speed that would be
reasonable and prudent for the existing
conditions; and/or, (b)[] there is ice and/or
snow on the roadway. Such evidence may be
considered together with all of the other
evidence in determining whether the operator
failed to drive at a speed and in a manner
which allowed the operator to maintain that
degree of control over the vehicle which a
reasonably careful and prudent person would
have maintained under the same or similarcircumstances.
. . . .
In determining whether the vehicle was
being operated at a speed greater than was
reasonable and prudent . . . , you should
consider all of the evidence about the
physical features at the scene[:] the time of
day, the weather conditions, the extent of
other traffic, the width and nature of the
roadway, and any other circumstances shown to
exist.
Later that same day, the jury returned a verdict in favor of
Defendant, answering No to the issue of whether Plaintiff was
injured by the negligence of Defendant. Plaintiff timely
appealed.
On appeal, Plaintiff challenges the trial court's jury
instructions in two respects: first, he argues that the court
erred in refusing to instruct that Defendant violated N.C. Gen.
Stat. § 20-146(d) by failing to keep his vehicle in his lane of
travel, and that such violation constitutes negligence per se;
second, he contends that the court erred by giving a sudden
emergency instruction. For the following reasons, we agree and
thus hold that Plaintiff is entitled to a new trial.
[1] 'When a party's requested jury instruction is correct
and supported by the evidence, the trial court is required to
give the instruction.' Maglione v. Aegis Family Health Ctrs.,
168 N.C. App. 49, 56, 607 S.E.2d 286, 291 (2005) (quoting
Whiteside Estates, Inc. v. Highlands Cove, L.L.C., 146 N.C. App.449, 464, 553 S.E.2d 431, 441 (2001), disc. review denied, 356
N.C. 315, 571 S.E.2d 220 (2002)). For an appeal on the trial
court's failure to give a requested instruction to prevail, a
party must establish the following elements: (1) the requested
instruction was a correct statement of law; (2) the requested
instruction was supported by the evidence; (3) the instruction
given, considered in its entirety, failed to encompass the
substance of the law requested; and (4) such failure likely
misled the jury. Liborio v. King, 150 N.C. App. 531, 564 S.E.2d
272, disc. review denied, 356 N.C. 304, 570 S.E.2d 726 (2002).
The instructions must be based on evidence, which when viewed in
the light most favorable to the proponent, will support a
reasonable inference of each essential element of the claim or
defense asserted. Anderson v. Austin, 115 N.C. App. 134, 136,
443 S.E.2d 737, 739 (citations omitted)
, disc. review denied, 338
N.C. 514, 452 S.E.2d 806 (1994). 'When a party aptly tenders a
written request for a specific instruction which is correct in
itself and supported by evidence, the failure of the court to
give the instruction, at least in substance, is error.'
Maglione, 168 N.C. App. at 56, 607 S.E.2d at 291 (quoting Faeber
v. E.C.T. Corp., 16 N.C. App. 429, 430, 192 S.E.2d 1, 2 (1972)).
The trial court need not give the exact instruction as requested,
and failure to give the requested instruction is not error solong as the substance of the requested instruction is given.
Parker v. Barefoot, 130 N.C. App. 18, 20, 502 S.E.2d 42, 44,
disc. review denied, 349 N.C. 362, 525 S.E.2d 455 (1998), rev'd
on other grounds, 351 N.C. 40, 519 S.E.2d 315 (1999).
In this case, the trial judge denied Plaintiff's request
that he give an instruction on the lane violation as negligence
per se. The trial court reasoned that the instruction would not
be proper because Defendant did not intentionally drive his car
into Plaintiff's lane; instead, he skidded out of control into
the left lane. On appeal, Defendant argues that the trial court
was correct because all of the evidence presented in the case
establishes that Defendant did not drive his car across the
center line into Plaintiff's lane of travel. We disagree.
Section 20-146 of the North Carolina General Statutes
provides in pertinent part that:
(d) Whenever any street has been divided into
two or more clearly marked lanes for traffic,
the following rules in addition to all others
consistent herewith shall apply.
(1) A vehicle shall be driven as nearly
as practicable entirely within a single lane
and shall not be moved from such lane until
the driver has first ascertained that such
movement can be made with safety.
N.C. Gen. Stat. § 20-146(d)(1) (2001). Plaintiff is correct that
a violation of this statute constitutes negligence per se and
that, if negligence resulting from such violation proximatelycauses injury, liability results. Stephens v. Southern Oil
Co., 259 N.C. 456, 458, 131 S.E.2d 39, 41 (1963). See also
Anderson v. Webb, 267 N.C. 745, 749, 148 S.E.2d 846, 849 (1966)
(When a plaintiff suing to recover damages for injuries
sustained in a collision offers evidence tending to show that the
collision occurred when the defendant was driving to his left of
the center of the highway, such evidence makes out a prima facie
case of actionable negligence).
Here, Plaintiff established a prima facie case of negligence
in that all of the evidence showed that Defendant crossed over
the center line and struck Plaintiff in the opposing lane of
traffic. The requested instruction regarding violation of
section 20-146(d) was therefore a correct statement of the law
supported by the evidence, and the trial court erred in refusing
to give such instruction. It is irrelevant that Defendant did
not intentionally drive his car from his lane of travel across
the center line. Rather, the crucial inquiry is whether
Defendant's actions culminating in the accident were negligent.
On this question, there was evidence from which a jury could find
that Defendant was negligent in the operation of his vehicle
before he lost control, and that these negligent acts in fact
caused him to lose control of the vehicle. For example, there
was evidence from which the jury could find that Defendant was onnotice that icy conditions prevailed on the road. In addition,
there was evidence from which the jury could find that Defendant
was traveling at an unsafe speed for the road conditions at the
time. Thus, a reasonable juror could find that Defendant drove
his car in a negligent manner in his own lane of travel,
culminating in a loss of control of the vehicle which, in turn,
caused him to cross the center line and collide with Plaintiff's
car.
However, a defendant may escape liability by showing that
he was on the wrong side of the road from a cause other than his
own negligence. Anderson, 267 N.C. at 749, 148 S.E.2d at 849.
Thus, Defendant could rebut the presumption of negligence created
by a violation of section 20-146(d) by presenting evidence that
he was on the wrong side of the road from a cause other than his
own negligence. See Nationwide Mut. Ins. Co. v. Chantos, 298
N.C. 246, 258 S.E.2d 334 (1979). Defendant was also free to
request an additional jury instruction informing the jury that if
it found that Defendant's violation of section 20-146(d) was not
caused by his negligence, the presumption of negligence was
rebutted. See N.C.P.I. Civ. 204.09
, n.3
(motor veh. vol. 1998).
Moreover, while we believe the negligence charge given by
the trial judge was very thorough, we are not persuaded by
Defendant's further argument that the court's charge to the jury,[i]n its totality, . . . fairly represented all of the material
issues. Although the judge instructed the jury that every
person is under a duty to follow standards of conduct established
by a safety statute and that a person's failure to do so is
negligence in and of itself, the only specific safety statute on
which he then charged the jury was N.C. Gen. Stat. § 20-141 (a),
that [n]o person shall drive a vehicle on a highway . . . at a
speed greater than is reasonable and prudent under the conditions
then existing. The jury was thus limited to finding negligence
on the basis of Defendant's violation of a safety statute if it
found that he was driving his vehicle at a speed greater than was
reasonable and prudent at the time. This charge did not permit
the jury to consider, alternatively, that Defendant was negligent
because of actions that caused his vehicle to cross the center
line and collide with Plaintiff's car in Plaintiff's lane of
travel. Because there was evidence to support an instruction on
a violation of section 20-146(d), the trial court erred in
denying Plaintiff's request that such instruction be given.
[2] Plaintiff next assigns error to the trial court's
instruction to the jury on the doctrine of sudden emergency,
arguing that the evidence was insufficient to support this
instruction. We agree.
The sudden emergency doctrine provides that one confrontedwith an emergency is not liable for an injury resulting from his
acting as a reasonable man might act in such an emergency.
Campbell v. McIlwain, 163 N.C. App. 553, 556, 593 S.E.2d 799, 802
(2004). Two elements must be satisfied before the sudden
emergency doctrine applies: (1) an emergency situation must exist
requiring immediate action to avoid injury, and (2) the emergency
must not have been created by the negligence of the party seeking
the protection of the doctrine. Allen v. Efird, 123 N.C. App.
701, 474 S.E.2d 141 (1996), disc. review denied, 345 N.C. 639,
483 S.E.2d 702 (1997).
As for the first element of the sudden emergency doctrine,
[a]n 'emergency situation' has been defined by our courts as
that which 'compels [defendant] to act instantly to avoid a
collision or injury[.]' Reed v. Abrahamson, 108 N.C. App. 301,
308, 423 S.E.2d 491, 495 (1992)(quoting Schaefer v. Wickstead, 88
N.C. App. 468, 471, 363 S.E.2d 653, 655 (1988))
, cert. denied,
333 N.C. 463, 427 S.E.2d 624 (1993). The second element
prohibits application of this doctrine where the sudden
emergency was caused, at least in part, by defendant's negligence
in failing to maintain the proper lookout or speed in light of
the roadway conditions at the time. Allen, 123 N.C. App. at
703, 474 S.E.2d at 143. Moreover, [a] sudden emergency
instruction is improper absent evidence of a sudden andunforeseeable change in conditions to which the driver must
respond to avoid injury. Id. (emphasis added).
In this case, Defendant argues that he was entitled to the
sudden emergency instruction because (1) he had not encountered
any slipping or sliding of his wheels during the four miles he
drove on Jones Ferry Road before the accident occurred, (2) he
had not encountered or observed any ice, hidden or obvious, in
that distance, (3) he had not lost control of his car before the
accident, (4) the nature and character of the roadway conditions
changed abruptly immediately in the area where the accident
occurred, and (5) he slid on ice that he had not observed before
hitting it almost immediately upon seeing a vehicle in front of
him slide. We are not persuaded by Defendant's argument.
All of the emergency and law enforcement witnesses described
the existence of icy patches in some areas of southbound Jones
Ferry Road in the four miles traveled by Defendant before the
accident occurred. Although Defendant denied that he observed or
otherwise became aware of those icy areas, he conceded that (1)
he saw the snow on the roadway; (2) he observed tracks of cars
that had traveled through the snow before he came along; (3) he
knew from his previous driving experience that when snow gets
traveled on[,] it packs down[] [and] when it gets packed down, it
can turn to ice[;] and (4) he acknowledged that he knew as hedrove on the morning of 9 January 2001 that the snowy areas he
saw with tire tracks through them had possibly been compacted
down into ice. These admissions of Defendant establish that he
was on notice of a potential encounter with ice on the road, and
that hitting ice as he drove was foreseeable. For this reason,
the evidence does not sustain Defendant's contention that he was
confronted with a sudden and unforeseeable change in road
conditions, and that he was thereby called upon to respond to a
sudden emergency.
This Court's decision in Banks v. McGee, 124 N.C. App. 32,
475 S.E.2d 733 (1996), is particularly persuasive here. In
Banks, the defendant lost control of her car after hitting a
puddle of water. When she hit the water, her car started
hydroplaning and skidded into the other lane, colliding with the
plaintiffs' car. Defendant testified she was aware that it was
raining, the roads were slick, and water tended to puddle in
places on the road she was traveling. She claimed that she was
entitled to a jury instruction on sudden emergency, however,
because she did not see the puddle before she hit it and, thus,
she was confronted with an unanticipated and sudden situation.
The trial court agreed and gave a sudden emergency instruction.
The jury answered the negligence issue in the defendant's favor.
On appeal, this Court framed the issue thusly: [W]hetherthe defendant is entitled to a sudden emergency instruction when
she loses control of her automobile on a rainy day after striking
a puddle of water on a road when she is aware that water tends to
puddle on that road. Id. at 33-34, 475 S.E.2d at 734. Noting
that the evidence of the defendant's knowledge of the road
conditions was undisputed, this Court held that such evidence
simply cannot support a conclusion that the defendant's contact
with the puddle of water was an unanticipated event. . . . The
question is not what she saw but instead what a reasonable person
in her situation should have seen. Id. (emphasis added). See
also Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227,
239, 311 S.E.2d 559, 568 (1984) (The crucial question in
determining the applicability of the sudden emergency doctrine is
. . . whether [defendant], when approaching the stopped vehicle,
saw or by the exercise of due care should have seen that he was
approaching a zone of danger.) (emphasis added).
Because Defendant in the case sub judice knew or in the
exercise of reasonable care should have known that the snow on
Jones Ferry Road could have become ice in some areas, the mere
fact that he did not see the icy patch he hit in advance of
hitting it is insufficient to establish that he was thereby
confronted with a sudden emergency. The trial court thus erred
in instructing the jury on sudden emergency. We agree with Defendant, however, that Plaintiff is entitled
to a new trial only if the trial court's error in giving a sudden
emergency instruction was prejudicial, that is, that it probably
influenced the jury's verdict. See N.C. Gen. Stat. § 1A-1, Rule
61 (2005); See Word v. Jones ex rel. Moore, 350 N.C. 557, 565,
516 S.E.2d 144, 148 (1999) (erroneous jury instructions are not
grounds for granting a new trial unless the error affected a
substantial right.). The instructions of the trial judge in
this case made it clear that, in considering whether Defendant
failed to keep a proper lookout, failed to keep his vehicle under
proper control, or drove too fast for conditions, the jury should
take the icy and snowy conditions into account. In fact, the
charge plainly permitted the jury to find that the skidding of
Defendant's car was evidence of negligence solely because there
was ice or snow on the roadway. Preceding these instructions,
however, was the court's sudden emergency instruction which
allowed the jury to conclude that even if Defendant was negligent
in the operation of his car up to the point that he hit the ice,
he was not liable for the accident because the ice that caused
him to lose control of his car constituted sudden and
unforeseeable conditions. Under these circumstances, we are
unable to say as a matter of law that the jury was not influenced
in its decision by the court's sudden emergency instruction. Plaintiff, therefore, is entitled to a new trial. Accord,
Pinckney v. Baker, 130 N.C. App. 670, 674, 504 S.E.2d 99, 102
(1998) ('[w]hen a trial judge instructs the jury on an issue not
raised by the evidence, a new trial is required) (quoting Giles
v. Smith, 112 N.C. App. 508, 512, 435 S.E.2d 832, 834 (1993)).
NEW TRIAL.
Judges MCGEE and HUNTER concur.
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