Appeal by Plaintiff from judgment and order entered 23
February 2005 by Judge James L. Baker, Jr. in Superior Court, Macon
County. Heard in the Court of Appeals 21 September 2006.
Melrose, Seago & Lay, P.A., by Mark R. Melrose, for Plaintiff-
Appellant.
Cogburn, Goosmann, Brazil & Rose, PA, by Patricia L. Arcuri
and Jennifer N. Foster, for Defendant-Appellee.
Russell & King, P.A., by J. William Russell, for Unnamed
Defendant-Appellee Alpha Property & Casualty Insurance Co.
McGEE, Judge.
Belinda Seay (Plaintiff) appeals from judgment entered on jury
verdicts finding that (1) Plaintiff was injured or damaged by the
negligence of Nycole Snyder (Defendant), (2) Plaintiff contributed
to her injury or damage by her own negligence, and (3) Defendantdid not have the last clear chance to avoid Plaintiff's injury or
damage. The trial court ordered that Plaintiff "shall have and
recover nothing of . . . Defendant." We affirm.
Plaintiff testified at trial that she was a rural mail carrier
and that on 19 December 2002, she was delivering mail on a narrow,
gravel road. As Plaintiff approached a blind curve in the road,
she looked ahead and saw a vehicle driving in the opposite
direction. Plaintiff testified she drove through the worst part of
the curve and stopped so the vehicle that was approaching her could
pass. Plaintiff testified that she pulled her vehicle as far to
the right side of the road as possible, leaving only six to eight
inches between her vehicle's door and the bank of the road.
Plaintiff testified that Defendant's vehicle
came around the curve and it was heading just
straight at me, and it was going fast. But
the main thing was [Defendant] wasn't looking,
and I thought to myself, oh my God, and then
she looked up. She did look up and then she
swerved. So, you know, instead of hitting me
head on, she caught my corner.
Defendant testified the accident occurred in a curve and that
when she first saw Plaintiff, Plaintiff was in the middle of the
road. Defendant testified she was also in the middle of the road,
but that she slammed on her brakes and swerved to the right.
Defendant testified that she measured the width of the vehicle she
was driving at the time of the accident and it was approximately
6.4 feet wide.
Leah McCall (Trooper McCall) testified she was a trooper with
the North Carolina State Highway Patrol on 19 December 2002, whenshe responded to the accident and conducted an investigation.
Trooper McCall testified that Defendant made the following
statement on the day of the accident: "I was coming down the road.
By the time I saw the other car I slammed on my brakes and
[Plaintiff] swerved over in my direction and we hit." Trooper
McCall also testified that she measured the tire impressions on the
road behind Plaintiff's and Defendant's vehicles and that the tire
impressions were almost the same in length. Plaintiff's skid marks
were 30.9 feet long and Defendant's skid marks were 31.3 feet long.
Trooper McCall testified that the width of the road where the
accident occurred was 14.4 feet and that Plaintiff's vehicle was
approximately six feet wide. The remainder of the factual and
procedural history of the case is set forth as necessary in the
analysis portion of this opinion.
I.
[1] Plaintiff first argues the trial court erred by submitting
the issue of contributory negligence to the jury. Plaintiff argues
there was no evidence suggesting a lack of due care concerning her
lookout and control and, as a result, there was no evidence of
proximate cause. "Contributory negligence is 'negligence on the
part of the plaintiff which joins, simultaneously or successively,
with the negligence of the defendant . . . to produce the injury of
which the plaintiff complains.'"
Bosley v. Alexander, 114 N.C.
App. 470, 472, 442 S.E.2d 82, 83 (1994) (quoting
Jackson v.
McBride, 270 N.C. 367, 372, 154 S.E.2d 468, 471 (1967)). To
establish contributory negligence, a defendant must demonstrate:"(1) a want of due care on the part of the plaintiff; and (2) a
proximate connection between the plaintiff's negligence and the
injury."
Whisnant v. Herrera, 166 N.C. App. 719, 722, 603 S.E.2d
847, 850 (2004). "The issue of contributory negligence should be
submitted to the jury if all the evidence and reasonable inferences
drawn therefrom viewed in the light most favorable to the defendant
tend to establish or suggest contributory negligence."
Bosley, 114
N.C. App. at 472, 442 S.E.2d at 83. "'If there is more than a
scintilla of evidence, contributory negligence is for the jury.'"
Tatum v. Tatum, 79 N.C. App. 605, 607, 339 S.E.2d 817, 818 (quoting
Pearson v. Luther, 212 N.C. 412, 421, 193 S.E. 739, 745 (1937)),
modified and aff'd per curiam, 318 N.C. 407, 348 S.E.2d 813 (1986).
In the present case, there was sufficient evidence of
Plaintiff's contributory negligence to submit the issue to the
jury. Defendant testified that the accident occurred in a curve
and that when she first saw Plaintiff's vehicle, it was in the
middle of the road. Defendant testified she was also in the middle
of the road, but that she slammed on her brakes and swerved to the
right. Defendant's testimony that Plaintiff was in the middle of
the road tends to show that Plaintiff did not exercise proper
lookout and control of her vehicle.
Trooper McCall testified that Defendant made the following
statement on the day of the accident: "I was coming down the road.
By the time I saw the other car I slammed on my brakes and
[Plaintiff] swerved over in my direction and we hit." This
testimony tends to show that Plaintiff did not exercise properlookout or control of her vehicle. Trooper McCall also testified
that she measured the tire impressions behind Plaintiff's and
Defendant's vehicles and that the tire impressions were almost the
same in length. Plaintiff's skid marks were 30.9 feet long and
Defendant's skid marks were 31.3 feet long. This tends to show
that both vehicles skidded approximately the same distance before
impact and that neither Plaintiff nor Defendant exercised proper
control of their vehicles. We conclude this evidence was
sufficient for the trial court to submit the issue of Plaintiff's
contributory negligence to the jury and we overrule this assignment
of error.
II.
[2] Plaintiff next argues there was insufficient evidence to
warrant the trial court's instruction on the general duty to drive
on the right hand side of the road as evidence of contributory
negligence, and that this instruction misled the jury. Our Court
reviews jury charges contextually and in their entirety.
Hughes v.
Webster, 175 N.C. App. 726, 730, 625 S.E.2d 177, 180,
disc. review
denied, 360 N.C. 533, 633 S.E.2d 816 (2006). "The charge will be
held to be sufficient if 'it presents the law of the case in such
manner as to leave no reasonable cause to believe the jury was
misled or misinformed[.]'"
Id. at 730, 625 S.E.2d at 180-81
(quoting
Jones v. Development Co., 16 N.C. App. 80, 86-87, 191
S.E.2d 435, 440,
cert. denied, 282 N.C. 304, 192 S.E.2d 194
(1972)).
In the present case, the trial court instructed the jury asfollows: "With respect to . . . [D]efendant's third contention, the
motor vehicle law provides that a motorist shall drive on the right
half of the street or highway. A violation of this law is
negligence within itself."
There was sufficient evidence presented at trial to support
this instruction. Trooper McCall testified that the width of the
road where the accident occurred was 14.4 feet. Trooper McCall
also testified that the vehicle driven by Plaintiff was
approximately six feet wide. Defendant testified she measured the
width of the vehicle she was driving at the time of the accident
and it was approximately 6.4 feet wide. Therefore, it was possible
for the two vehicles to pass each other on the roadway. Plaintiff
also testified that there was room for two vehicles to pass each
other safely at the point where the collision occurred. Despite
there being sufficient room for both vehicles to pass each other,
Defendant testified that both vehicles were driving in the middle
of the road just before the accident. Therefore, the trial court
did not err by instructing the jury on the general duty to drive on
the right hand side of the road.
Plaintiff also argues the jury instruction misled the jury
because it did not take into account the narrowness of the road in
question. However, in addition to the challenged instruction, the
trial court also instructed the jury as follows: "When the
conditions existing at the scene increase the danger in comparison
to normal conditions, the care required of the operator is
correspond[ingly] increased." With respect to speed, the trialcourt also instructed that "[i]n determining whether a vehicle was
being operated at a speed greater than was reasonable and prudent
you should consider . . . the width and the nature of the
roadway[.]" We find no error in the jury instruction as a whole
and overrule this assignment of error.
III.
[3] Plaintiff argues the trial court erred by denying her
motion for directed verdict because there was insufficient evidence
of Plaintiff's contributory negligence. "The standard of review of
directed verdict is whether the evidence, taken in the light most
favorable to the non-moving party, is sufficient as a matter of law
to be submitted to the jury."
Davis v. Dennis Lilly Co., 330 N.C.
314, 322, 411 S.E.2d 133, 138 (1991). Because this is the same
standard of review as we applied in reviewing Plaintiff's first
assignment of error, and because there was sufficient evidence of
Plaintiff's contributory negligence to go to the jury, we overrule
this assignment of error.
IV.
[4] Plaintiff next argues the trial court erred by failing to
instruct the jury that a motorist has a duty, "when driving on a
narrow, single lane road, to slow down and if necessary stop in
order to yield the right of way within a narrow lane of travel."
To prevail on the issue of whether a requested instruction should
have been submitted to the jury, the party requesting the
instruction must demonstrate that "(1) the requested instruction
was a correct statement of law and (2) was supported by theevidence, and that (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, 534, 564 S.E.2d 272, 274,
disc. review denied, 356
N.C. 304, 570 S.E.2d 726 (2002).
In the present case, the requested instruction was not
supported by the evidence. Plaintiff requested this instruction on
the basis of
Brown v. Products Co., Inc., 222 N.C. 626, 24 S.E.2d
334 (1943), where the plaintiff's vehicle collided with a vehicle
owned by the corporate defendant (the defendant) and driven by the
defendant Hampton (Hampton).
Id. at 627, 24 S.E.2d at 335. The
plaintiff took a voluntary nonsuit with respect to Hampton and, on
the defendant's motion, the trial court entered judgment of nonsuit
as to the defendant.
Id.
In
Brown, there had been a heavy snow prior to the accident
and the snow had not been completely removed from the road at and
near the point of collision.
Id. at 627, 24 S.E.2d at 335.
About 150 feet north of the point of collision
the snowbank began to gradually encroach upon
the hard surface on the west side until a lane
only about 10 feet wide on [the] plaintiff's
left side of the road remained for use. This
lane continued about 50 or 75 feet and then
opened up "all at once to two lanes." [The]
[p]laintiff entered the restricted area as he
rounded a curve and was in the narrow 10-foot
passageway when Hampton approached. At that
point the snowbank on the west half of the
road was 2 or 3 feet high and was observable
by motorists approaching from the south.
While [the] plaintiff was in this narrow lane
he observed Hampton about 400 feet away
approaching from the south traveling about 45
miles per hour. Hampton did not slow down,
but entered the narrow lane before [the]plaintiff could get out to a point where he
could safely turn to his right. [The]
[p]laintiff attempted to cut to the right on
the snow bank, but was unable to do so, and
the cars collided. [The] [p]laintiff was
traveling 20 to 25 miles per hour. He had
chains on his wheels.
Id. at 627-28, 24 S.E.2d at 335.
Our Supreme Court recognized that at the point of collision,
the highway had been narrowed to a "one-way or one-lane road-not a
two-lane highway[,]" and that the plaintiff had entered this "one-
way lane" before Hampton entered.
Id. at 629, 24 S.E.2d at 336.
The Court held:
If Hampton did see and observe this condition
which created a special hazard and made it
impossible for two cars to pass in safety, or
if by keeping a proper lookout he could have
seen, it was his duty to slow down and if
necessary to stop in order to yield the right
of way within the narrow lane to [the]
plaintiff.
Id. Accordingly, the Court reversed judgment of nonsuit for the
defendant.
Id. at 630, 24 S.E.2d at 336
In the present case, unlike in
Brown, the road on which the
accident occurred was not a one-way or one-lane road. The road was
wide enough to allow two vehicles to pass. Plaintiff even
testified that there was room for two vehicles to pass each other
safely at the point where the collision occurred. Therefore, the
evidence did not support the requested instruction.
Moreover, the instructions given encompassed the substance of
the requested instruction, and therefore, the instructions did not
mislead the jury. With respect to control, the trial court
instructed: [T]he operator of a motor vehicle on a highway
has a duty to keep the vehicle under proper
control. This means that the operator is at
all times under a duty to operate a vehicle at
a speed and in a manner which allows him or
her to maintain that degree of control over
the vehicle which a reasonably careful prudent
person would have maintained under the same or
similar circumstances. When the conditions
existing at the scene increase the danger in
comparison to normal conditions, the care
required of the operator is correspond[ingly]
increased.
The trial court also instructed the jury that "the motor vehicle
law provides that it is unlawful to operate a motor vehicle on a
street or highway at a speed greater than is reasonable and prudent
under the conditions then existing." The trial court further
instructed:
In determining whether a vehicle was being
operated at a speed greater than was
reasonable and prudent you should consider all
of the evidence about the physical features of
the scene; the hour of day or night; the
weather conditions; the extent of other
traffic; the width and nature of the roadway,
and any other circumstances shown to exist.
The trial court also instructed the jury on the duty to decrease
speed to avoid a collision as follows:
[T]he motor vehicle law provides that the fact
that a person is driving her vehicle at a
speed lower than a posted speed limit does not
relieve her of a duty to decrease her speed as
might be necessary to avoid colliding with any
vehicle on a street or highway and to avoid
injury to any person or property. Thus, even
though the speed of . . . [D]efendant's
vehicle was lower than the posted speed limit
set by law, if she failed to decrease speed
when under the existing circumstances a
reasonably careful[] and prudent person would
have decreased the speed to avoid colliding
with any vehicle on a street or highway and to
avoid any injury with any person or damage toany property, then such failure would be
negligence.
The trial court's instruction to maintain control as a
reasonably prudent person would under the circumstances addressed
the need to stop or yield the right of way on a narrow road. The
control instruction also stated that the level of care increased
"[w]hen the conditions existing at the scene increase the danger in
comparison to normal conditions[.]" The trial court's instructions
on speed addressed the duty to slow down under certain
circumstances and the trial court specifically instructed the jury
to consider the width and nature of the roadway when assessing
whether the vehicles were traveling at a safe speed. Therefore,
the instructions given encompassed the requested instruction and
did not mislead the jury. Accordingly, because the requested
instruction was not supported by the evidence and because the
instructions given encompassed the substance of the requested
instruction, we overrule this assignment of error.
V.
[5] Plaintiff next argues the trial court erred by excluding
Trooper McCall's accident report diagram, which showed that
Defendant's vehicle was left of the centerline of the road at the
point of impact. We disagree.
Defendant argues that we should dismiss this assignment of
error because the excluded accident report diagram was not included
in the record on appeal. However, the transcript reveals that the
diagram, which was prepared by Trooper McCall from the evidence she
gathered at the scene, attempted to show the placement of thevehicles at the time of the accident. Specifically, the diagram
attempted to show that Defendant's vehicle was over the centerline
of the road at the point of impact. Therefore, because the
substance of the diagram is in the transcript, we address this
issue.
Plaintiff argues that the diagram merely portrayed Trooper
McCall's physical findings, the results of which "deem[ed] . . .
Defendant to [have been] left of center at the point of impact[.]"
However, our Court has held that testimony concerning point of
impact is impermissible lay opinion testimony. In
State v. Wells,
52 N.C. App. 311, 278 S.E.2d 527 (1981), an officer testified that
he arrived on the scene of an accident and discovered two vehicles,
a Ford and a Chevrolet, in the eastbound lane of a two-lane road.
Id. at 311-12, 278 S.E.2d at 528. The Ford was facing south and
the Chevrolet was facing west; both vehicles were heavily damaged
on the left front side.
Id. at 312, 278 S.E.2d at 528. The
officer found the defendant, who was unconscious, in the Ford, and
found the decedent in the Chevrolet.
Id. The officer found glass,
dirt and pieces of chrome in the center of the eastbound lane and
found a fender in the westbound lane.
Id. The officer also
observed fresh gouge marks near the debris in the center of the
eastbound lane and observed asphalt under the front of the Ford.
Id. The officer then concluded, based on the location of the gouge
marks and the debris, that the impact had occurred in the center of
the eastbound lane.
Id. The defendant was convicted of,
inter
alia, involuntary manslaughter.
Id. at 313, 278 S.E.2d at 529. Our Court recognized that "while it is competent for an
investigating officer to testify as to the condition and position
of the vehicles and other physical facts observed by him at the
scene of an accident, his testimony as to his conclusions from
those facts is incompetent."
Id. at 314, 278 S.E.2d at 529. Our
Court held that "[b]y testifying that his investigation revealed
the point of impact between the two cars to be in [the] decedent's
lane of travel, [the officer] stated an opinion or conclusion which
invaded the province of the jury."
Id. Therefore, our Court held
that the defendant was entitled to a new trial on the manslaughter
charge as a result of the trial court's erroneous admission of the
officer's incompetent opinion testimony.
Id. at 316, 278 S.E.2d at
530.
In the present case, Trooper McCall's diagram indicated that
the point of impact occurred in Plaintiff's lane of travel.
However, Trooper McCall did not witness the accident and reached
this conclusion on the basis of her physical findings at the scene
of the accident. Because the diagram depicting the point of impact
was in essence a conclusion, the trial court did not err by
excluding the diagram from evidence. We overrule this assignment
of error.
VI.
[6] Plaintiff argues the trial court erred by denying her
motion
in limine, which sought to allow the attorney for
Plaintiff's underinsured motorist carrier, J. William Russell (Mr.
Russell), to be referred to as representing the "unnameddefendant." The trial court introduced Mr. Russell as follows:
"Also at the defense table with Ms. Arcuri on behalf of
. . . [D]efendant is attorney William Russell." Plaintiff argues
it was "inherently prejudicial that the jury was led to believe
that Mr. Russell was present at trial in a representative capacity
for . . . Defendant, as he simply was not." However,
Plaintiff cites no authority for her position, and has therefore
abandoned this assignment of error.
See N.C.R. App. P. 28(b)(6).
Moreover, Plaintiff does not claim any specific prejudice, apart
from alleging the trial court's error was "inherently prejudicial."
We further note that N.C. Gen. Stat. § 20-279.21(b)(4) (2005)
provides that "[u]pon receipt of notice, the underinsured motorist
insurer shall have the right to appear in defense of the claim
without being named as a party therein, and without being named as
a party may participate in the suit as fully as if it were a
party." We overrule this assignment of error.
Affirmed.
Judges WYNN and McCULLOUGH concur.
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