Digsby v. Gregory

240 S.E.2d 491 (1978)

35 N.C. App. 59

Dian B. DIGSBY and James W. Digsby v. John Wayne GREGORY.

No. 7626DC955.

Court of Appeals of North Carolina.

January 17, 1978.

*493 Rodney Dean and C. Byron Holden, Charlotte, for defendant-appellant.

No counsel contra.

PARKER, Judge.

Although not a final judgment, the court's order is appealable because it grants a new trial as to damages. G.S. 1-277(a); G.S. 7A-27(d).

Defendant appellant first contends that the court erred in failing to instruct the jury that the plaintiffs were guilty of contributory negligence as a matter of law in that their own evidence establishes that they violated the provisions of G.S. 20-161(a) and (b). The error, if any, was harmless, since the jury answered the issue of contributory negligence in defendant's favor. "Appellant may not complain of alleged error in respect to an issue answered in his favor." 1 Strong, N.C. Index 3d, Appeal and Error, § 53, p. 329.

Defendant next contends that the court erred in submitting an issue of last clear chance. "The doctrine [of last clear chance] applies if and when it is made to appear that the defendant discovered, or by the exercise of reasonable care should have discovered, the perilous position of the party injured or killed and could have avoided the injury, but failed to do so." Earle v. Wyrick, 286 N.C. 175, 178, 209 S.E.2d 469, 470 (1974). While the evidence in the present case is susceptible to varying interpretations, we find it sufficient, when viewed in the light most favorable to the plaintiffs, to permit the jury to find that defendant should have discovered plaintiffs' perilous position in time to avoid the accident. See Annot., 34 A.L.R.3d 570 (1970). Traveling at a speed of 30 to 35 miles per hour, a driver exercising due care should be able to avoid striking a parked car which comes into view a block away. It is not true, as defendant contends, that the evidence shows that the plaintiff, Mrs. Digsby, could have escaped at any time, almost up to the moment of impact, from the perilous position in which her own negligence had placed her. Her car was parked "pretty close up to the back" of her husband's, and although her motor was running, her transmission was in park, and the jury could reasonably find that it would have required more time than was available to her after defendant's car came into view in which to move her vehicle to a place of safety. We find no error in the submission of the issue of last clear chance.

Defendant next contends that the court erred in refusing to accept the verdict and in failing to sign the judgment in accord with the verdict which was tendered by the defendant. Plaintiffs' motion to set aside the verdict on the damage issues on the grounds that the jury's verdict on those issues was contrary to the weight of the evidence was addressed to the sound discretion of the trial court, 7 Strong, N.C.Index 2d, Trial, § 52, and it is well settled in this jurisdiction "that the action of the trial judge in setting aside a verdict in his discretion is not subject to review on appeal in the absence of an abuse of discretion." Goldston v. Chambers, 272 N.C. 53, 59, 157 S.E.2d 676, 680 (1967). The record discloses no abuse of discretion, and therefore the portion of the trial court's order setting aside the jury's verdict as to the damage issues is not subject to appellate review.

*494 When the trial judge set the verdict aside he limited the new trial to the issues of damages, and we agree with defendant's contention that the new trial should also include the issues relating to liability. Although the trial judge has the discretionary authority to order a partial new trial, he should do so only if the issue to be tried is distinct and separable from the other issues. The possibility of an error on one issue affecting the entire verdict is particularly acute "`where the error in the verdict relates to the amount of damages assessed and it appears that this error was not the result of any ruling by or charge from the trial judge, but was committed solely by the jury itself after retiring to consider its verdict.'" Robertson v. Stanley, 285 N.C. 561, 569, 206 S.E.2d 190, 195 (1974), quoting 58 Am.Jur.2d, New Trial, § 25 (1971).

In the present case, the trial judge apparently concluded that the jury had improperly determined the amount of damages. The evidence, however, presented extremely close questions for the jury to determine, not only on the issues as to the amount of damages, but also on the issues as to liability. Under all of the evidence in this case, we conclude that the issues of negligence, contributory negligence, last clear chance, and damages "are so inextricably interwoven that a new trial on all issues is necessary." Robertson v. Stanley, supra, 285 N.C. at 569, 206 S.E.2d at 196. We hold that the trial judge should have granted defendant's motion to set aside the entire verdict and to order a new trial on all issues. The order appealed from is modified accordingly, and a new trial is ordered on all issues.

New trial.

BROCK, C. J., and ARNOLD, J., concur.