Thomas v. Deloatch

263 S.E.2d 615 (1980)

Thelmore THOMAS, Plaintiff, v. Randolph DELOATCH, Defendant and Third Party Plaintiff, v. Minnie E. FUTRELL and David Lee Gatling, Third Party Defendants. Rufus LONG, Plaintiff, v. Randolph DELOATCH, Defendant and Third Party Plaintiff, v. Minnie E. FUTRELL and David Lee Gatling, Third Party Defendants.

No. 796SC677.

Court of Appeals of North Carolina.

March 4, 1980.

*619 Johnson, Johnson & Johnson by Bruce C. Johnson, Conway, for plaintiffs-appellees.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by James G. Billings, Raleigh, for defendant and third party plaintiff-appellant.

Battle, Winslow, Scott & Wiley by Samuel S. Woodley, Rocky Mount, for third party defendant appellee.

VAUGHN, Judge.

Defendant contends his motion for directed verdict at the close of all the evidence and, therefore, his motion for judgment notwithstanding the verdict should have been granted against both plaintiffs because they were contributorily negligent as a matter of law.

The general rule is that a directed verdict for a defendant on the ground of contributory negligence may only be granted when the evidence taken in the light most favorable to plaintiff establishes [plaintiff's] negligence so clearly that no other reasonable inference or conclusion may be drawn therefrom. Contradictions or discrepancies in the evidence even when arising from plaintiff's evidence must be resolved by the jury rather than the trial judge. *620 Clark v. Bodycombe, 289 N.C. 246, 251, 221 S.E.2d 506, 510 (1976); accord Rappaport v. Days Inn, 296 N.C. 382, 250 S.E.2d 245 (1979); Bowen v. Rental Co., 283 N.C. 395, 196 S.E.2d 789 (1973).

Defendant contends several actions of plaintiff Thomas affirmatively constitute contributory negligence as a matter of law. Thomas continued to ride as a passenger in a car, on which he was responsible for the maintenance, knowing it to have transmission problems. He instructed the driver to pull to the side of the road rather than into two driveways they passed thus creating a situation where a portion of the car was possibly still on the main portion of the highway. He was placed on notice by the Gatling sideswipe that the car was in a dangerous position but did nothing to attempt to move the car before the second collision. When he went to the rear of the Futrell car, he placed himself in a position of peril and failed to keep a reasonable and proper lookout for oncoming traffic. Finally, he contends defendant's intoxication contributed to the accident. All these factors do raise the issue of contributory negligence on the part of Thomas but the evidence on these matters is so contradictory, conflicting and inconsistent that in a light most favorable to plaintiff, it is a jury question and not a matter of law. Based on the evidence, it was for the jury to resolve these matters.

It is the duty of a person operating a car to see that it is in reasonably good condition and properly equipped so that it does not become a source of danger for occupants or other travelers. Dupree v. Batts, 276 N.C. 68, 170 S.E.2d 918 (1969); Scott v. Clark, 261 N.C. 102, 134 S.E.2d 181 (1964). Defendant relies on Prevette v. Bullis, 12 N.C.App. 552, 183 S.E.2d 810 (1971), where this Court held the jury was properly permitted to consider the evidence that plaintiff allowed a car to run out of gas and possibly stall on the highway in determining the issue of contributory negligence. These circumstances, factually similar to the case at hand, were not held to be negligence as a matter of law. See also Rouse v. Snead, 271 N.C. 565, 157 S.E.2d 124 (1967).

Defendant contends Thomas was in violation of G.S. 20-161(a), which would be negligence per se, in that he directed Futrell to park the car upon the paved or main traveled portion of the highway. Certainly the conflict of evidence on the location of the car which is a prerequisite before G.S. 20-161(a) is reached makes violation of this statute a jury question. We further note that G.S. 20-161(a) does have an exculpatory provision for a vehicle "disabled to such an extent that it is impossible to avoid stopping and temporarily leaving the vehicle upon the paved or main-traveled portion of the highway or highway bridge." The situation presented a jury question on whether it was an unavoidable stop due to the transmission disability. Plaintiff's evidence and contentions in a light most favorable to him are to the effect that the car was coasting and could not have turned into a driveway and was in fact completely off the road when stopped. But, such was for a jury to find and not for a trial judge to rule to the contrary as a matter of law.

A pedestrian does have a duty to keep a reasonable and proper lookout and it may be contributory negligence as a matter of law to not so do. See, e. g., Price v. Miller, 271 N.C. 690, 157 S.E.2d 347 (1967). A driver of a car has a similar duty. See, e. g., Whaley v. Adams, 25 N.C.App. 611, 214 S.E.2d 301 (1975). Plaintiff relies on two cases factually similar to this case. Basnight v. Wilson, 245 N.C. 548, 96 S.E.2d 699 (1957); Gregory v. Adkins, 7 N.C.App. 305, 172 S.E.2d 289 (1970). Both cases involved cars pulled to the road shoulder. The stalled cars were hit and the plaintiffs who were standing near the stalled cars were also hit. The plaintiffs in both cases were held to be contributorily negligent as a matter of law. But there is a crucial difference in both cases. In both Basnight and Gregory, the evidence is uncontradicted that the stalled car or at least a portion was in the highway traffic lane. In Gregory, it is uncontroverted that the plaintiff was also in the traffic lane. The conflict in the evidence *621 in the case at hand on the location of the Futrell car and Thomas makes the question of Thomas' negligence a jury question of fact and not a judge's question of law.

Finally, defendant argues that Thomas' alcohol consumption made him contributorily negligent. But the degree of his impairment, if indeed any, was in dispute and was a jury question.

All defendant's arguments about contributory negligence on the part of Thomas are persuasive arguments for the jury. But the arguments are devoted to inconsistencies and contradictions in the evidence. That is for the jury to determine not for a court to determine on a motion for directed verdict when all such inconsistencies and contradictions are to be resolved in favor of the nonmovant.

Defendant also contends plaintiff Long was contributorily negligent as a matter of law in talking to his cousin while standing near but not on the highway in a lane beside his home and there being hit by the Futrell car which was knocked into him by the impact when the Deloatch car hit it. Such is not the law. See Rowe v. Murphy, 250 N.C. 627, 109 S.E.2d 474 (1959); contrast Gregory v. Adkins, 7 N.C.App. 305, 172 S.E.2d 289 (1970).

Defendant's remaining six assignments of error deal with the jury instruction of the trial judge. In these assignments, defendant raises questions of error in the instruction of the trial judge on the law relating to G.S. 20-161 and his instruction on insulating negligence and in his instruction on certain contentions of defendant.

The trial judge instructed in part:

[A] person may park or leave standing a vehicle on the shoulder of the highway, that is, completely off the traveled portion thereof, at a place where he can be clearly seen by approaching drivers from at least two hundred feet in any direction. A person may not leave a vehicle parked or standing on the highway in the main traveled portion of the highway unless the vehicle is disabled to such an extent that it is impossible to avoid stopping and leaving it there. So, if one leaves a vehicle at least partially on the main traveled portion of the highway he may excuse that stopping by showing that the vehicle was disabled to such an extent that it was impossible to avoid stopping there and leaving it temporarily. To be impossible to remove means it was not reasonably practicable under the circumstances to move the vehicle. If one must leave a vehicle stopped or standing upon the highway, there shall be displayed thereon lights visible at least five hundred feet from the front, a white or amber light, and a red light visible at least five hundred feet to the rear. So, if a motorist disabled upon the highway has upon his vehicle a light visible for at least five hundred feet to the rear and to the front under the conditions then existing, he would be entitled to leave the vehicle there temporarily when it is not practical to move it. But, if he left a vehicle on the main traveled portion of the highway at a time when he could have with reasonable care removed the vehicle from the highway and left it there without the lights required by law, he would be negligent.

Defendant contends this was an erroneous instruction on the law set forth in G.S. 20-161 as it relates to this case. We disagree.

A reading of the complained of portion of the charge reveals that the trial judge was also instructing on G.S. 20-134 as well as G.S. 20-161. These statutes provide the following:

(a) No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled portion of any highway or highway bridge outside municipal corporate limits unless the vehicle is disabled to such an extent that it is impossible to avoid stopping and temporarily leaving the vehicle upon the paved or main-traveled portion of the highway or highway bridge. *622 (b) No person shall park or leave standing any vehicle upon the shoulder of a public highway outside municipal corporate limits unless the vehicle can be clearly seen by approaching drivers from a distance of 200 feet in both directions and does not obstruct the normal movement of traffic.

G.S. 20-161(a), (b).

Whenever a vehicle is parked or stopped upon a highway, whether attended or unattended during the times mentioned in § 20-129, there shall be displayed upon such vehicle one or more lamps projecting a white or amber light visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle, and projecting a red light visible under like conditions from a distance of five hundred feet to the rear, except that local authorities may provide by ordinance that no lights need be displayed upon any such vehicle when parked in accordance with local ordinances upon a highway where there is sufficient light to reveal any person within a distance of two hundred feet upon such highway.

G.S. 20-134. The portion of the charge complained of is an adequate instruction on the law contained in these statutes.

Defendant contends that Thomas was not entitled to an instruction on the exculpatory provision of G.S. 20-161 for disabled vehicles because the disability was due to Thomas' own wrongful conduct. The statute does not provide for such distinction and we will not imply it. Further, defendant did not timely request such an instruction in writing as required by G.S. 1A-1, Rule 51(b) and G.S. 1-181. The assignment of error on this point is, therefore, overruled.

Defendant also contends the trial judge should have mentioned the "paved" portion of the roadway as well as the "main-traveled" portion of the highway. The statute in part does require that "[n]o person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled portion of any highway . . .." G.S. 20-161(a) (emphasis added); contrast 20-161(b). The only logical reading of the statute is that it does not prohibit the emergency parking of a vehicle on the shoulder of a highway, paved or otherwise, which is outside the main traveled part. "[T]he provisions of G.S. 20-161 require that no part of a parked vehicle be left protruding into the traveled portion of the highway when there is ample room and it is practicable to park the entire vehicle off the traveled portion of the highway." Sharpe v. Hanline, 265 N.C. 502, 504, 144 S.E.2d 574, 576 (1965). This statute has been the law of this State since the adoption of the Motor Vehicles Act of 1937. 1937 N.C.Sess. Laws ch. 407. The statute when adopted read in part "[n]o person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of any highway . . .." Id., § 123. The statute was rewritten in 1971 and that rewriting is the wording of the portion of the statute we are today dealing with. 1971 N.C.Sess. Laws ch. 294, § 1. The statute was written so as to apply to dirt country roads and super highways. It is unlawful to park in the main traveled portion of a paved or unpaved road without the excuse provided by the statute and it is unlawful to park in the main traveled portion of a super highway but not unlawful to park in the paved emergency strip or the pavement outside the white line. To interpret the statute as defendant would interpret it would make it illegal to pull over and stop on the paved strip on a super highway specifically provided for emergency stops. The trial judge correctly instructed on the law arising under this statute for a two lane major highway which has pavement extending beyond the main traveled portion of the highway. It is necessary to qualify highway by the terms "paved or main-traveled portion" for the Motor Vehicles Act defines "highway" as the entire right-of-way width "when any part thereof is open to the use of the public as a matter of right for the purpose of vehicular traffic." G.S. 20-4.01(13). Without the qualification of *623 the term highway in G.S. 20-161, virtually anywhere a driver pulled a car off the road, he would still be on the highway.

Defendant assigns error in the trial judge's instruction on the negligence of third party defendant Futrell and the concept of insulating negligence. It is upon these same points that Futrell cross assigns error. We will, therefore, treat the assigned errors together. The trial judge instructed the jury that Futrell contended her negligence, if any, was "insulated" or "cut off" by the negligence of Deloatch. The trial judge then went on to instruct:

If you find that Minnie Futrell was negligent in some respect in stopping or leaving her vehicle on the highway, such negligence would be insulated, she would not be liable, if the negligence of Randolph Deloatch was such that it broke any causal connection between Mrs. Futrell's negligence and the injury or damage which the plaintiffs may have suffered so that the negligence of Randolph Deloatch became the sole proximate cause of any injury which resulted. On the other hand, if negligence on the part of Mrs. Futrell continued to be a proximate cause of the injury right up to the time of the collision, then Mrs. Futrell would be liable for contribution in this action to contribute to any damage which Mr. Deloatch is required to pay.

The instruction was adequate. Our Court has said:

In order to insulate the negligence of one party the intervening negligence of another must be such as to break the sequence or causal connection between the negligence of the first party and the injury. The intervening negligence must be the sole proximate cause of the injury. Rattley v. Powell, 223 N.C. 134, 25 S.E.2d 448 (1943). In cases involving rear-end collisions between a vehicle slowing or stopping on the road without proper warning signals, and following vehicles, the test most often employed by North Carolina courts is foreseeability. The first defendant is not relieved of liability unless the second independent act of negligence could not reasonably have been foreseen. See McNair v. Boyette, 282 N.C. 230, 192 S.E.2d 457 (1972); Byrd and Dobbs, Survey of North Carolina Case Law, Torts, 43 N.C.L.Rev. 906, 927-30 (1965). See Byrd, Proximate Cause in North Carolina Tort Law, 51 N.C.L.Rev. 951 (1973). The foreseeability standard should not be strictly applied. It is not necessary that the whole sequence of events be foreseen, only that some injury would occur.

Hester v. Miller, 41 N.C.App. 509, 513, 255 S.E.2d 318, 321 (1979). The instruction complied with the law of this State on insulating negligence. See Rowe v. Murphy, 250 N.C. 627, 109 S.E.2d 474 (1959); Note, 33 N.C.L.Rev. 498 (1955).

Defendant's remaining assignments of error in the jury charge are in the adequacy of the charge given on the contentions of defendant as to the negligence of third party defendant Futrell. Defendant did not request any particular instructions from the trial judge on these contentions. At no point in the record does defendant indicate what instruction should have been given.

An exception to the failure to give particular instructions to the jury or to make a particular finding of fact or conclusion of law which was not specifically requested of the trial judge shall identify the omitted instruction, finding, or conclusion by setting out its substance immediately following the instructions given, or findings or conclusions made.

Rule 10(b)(2), Rules of Appellate Procedure. Defendant has not complied with the rules of appellate procedure. State v. Freeman, 295 N.C. 210, 244 S.E.2d 680 (1978). We further note that the trial judge specifically asked counsel for the parties if there were any further requests for evidence or contentions before he concluded the charge and counsel for all parties including defendant indicated there were none. It was defendant's duty to tender such requests for additional instructions or contentions particularly when the trial judge asked for them. Hunter v. Fisher, 247 N.C. 226, 100 S.E.2d *624 321 (1957). These assignments of error relating to contentions of defendant are overruled.

The charge considered contextually and as a whole is adequate and free from prejudicial error. The jury has spoken on the issues and their verdict stands.

No error.

HEDRICK and CLARK, JJ., concur.