Cicogna v. Holder

480 S.E.2d 636 (1997)

Karen D. CICOGNA v. John H. HOLDER.

No. 125A96.

Supreme Court of North Carolina.

February 10, 1997.

*637 Staton, Perkinson, Doster, Post, Silverman and Adcock by Jonathan Silverman and Elizabeth Myrick Boone, Sanford, for plaintiff-appellant.

Teague, Rotenstreich and Stanaland, L.L.P. by Kenneth B. Rotenstreich and Laurie R. Stegall, Greensboro, for defendant-appellee.

WEBB, Justice.

The question raised by this appeal involves the quantum of evidence necessary to submit contributory negligence to the jury when the plaintiff's vehicle is struck by another vehicle while the plaintiff is proceeding through an intersection pursuant to a green light. There is no evidence in this case that there was anything that would have put the plaintiff on notice that the defendant would not obey the traffic light. Absent such evidence, contributory negligence should not have been submitted to the jury. The plaintiff was not required to anticipate that the defendant would be negligent. Penland v. Greene, 289 N.C. 281, 221 S.E.2d 365 (1976). The only evidence presented was that the plaintiff had the green light and was struck by the defendant, who violated the red light. This is not sufficient evidence of contributory negligence by the plaintiff to submit contributory negligence to the jury.

This case is similar to Jones v. Schaffer, 252 N.C. 368, 114 S.E.2d 105 (1960), in which we said a person "has a right to assume that any motorist approaching from his left on the intersecting street will stop in obedience to the red light facing him unless and until something occurs that is reasonably calculated to put him on notice that such motorist will unlawfully enter the intersection." Id. at 375, 114 S.E.2d at 111; see also Myrick v. Peeden, 113 N.C.App. 638, 439 S.E.2d 816, disc. rev. denied, 336 N.C. 781, 447 S.E.2d 426 (1994); Snead v. Holloman, 101 N.C.App. 462, 400 S.E.2d 91 (1991).

The defendant relies principally on two cases: Bass v. Lee, 255 N.C. 73, 120 S.E.2d 570 (1961), and Frugard v. Pritchard, 112 N.C.App. 84, 434 S.E.2d 620 (1993), rev'd on other grounds, 338 N.C. 508, 450 S.E.2d 744 (1994). Neither is helpful to him. Each of these cases reiterates the rule that a motorist, although he has the green light, must keep a proper lookout. In each case, however, there was evidence of negligence in addition to a collision in an intersection. In Bass, a passenger in the defendant's automobile warned him that the vehicle approaching the intersection would not stop. In Pritchard, the defendant was looking to the right and waving to friends as he entered the intersection. This was additional evidence that the defendant did not keep a proper lookout. There was no such evidence regarding the plaintiff in the case before us.

We hold it was error to submit contributory negligence to the jury in this case. In ordering a new trial, it is within the discretion of this Court whether to grant a new trial on all issues. If the issue which was erroneously submitted did not affect the entire verdict, there should not be a new trial on all issues. See Fortune v. First Union Nat'l Bank, 323 N.C. 146, 371 S.E.2d 483 (1988); Weyerhaeuser Co. v. Godwin Bldg. Supply Co., 292 N.C. 557, 234 S.E.2d 605 (1977). In this case, the evidence as to negligence and contributory negligence was separate. The verdict as to contributory negligence should not have affected the negligence issue.

We therefore remand this case to the Court of Appeals for further remand to Superior Court, Lee County, for a new trial on the issue of damages.

REVERSED AND REMANDED.