Auman v. Easter

• Decision Date: 06 June 1978
• Docket Number: No. 7719SC497,7719SC497
• Citation: 244 S.E.2d 728,36 N.C.App. 551
• Court: North Carolina Court of Appeals
• Parties: Sylvia Dianne Williams AUMAN v. Kenzie Parks EASTER and Joseph Frazier Howell.

Page 728

244 S.E.2d 728

36 N.C.App. 551

Sylvia Dianne Williams AUMAN v. Kenzie Parks EASTER and Joseph Frazier Howell.

No. 7719SC497.

Court of Appeals of North Carolina.

June 6, 1978.

Brinkley, Walser, McGirt & Miller, by Walter F. Brinkley, Lexington, for defendant-appellee, Kenzie Parks Easter.

Smith, Moore, Smith, Schell & Hunter, by Stephen Millikin, Greensboro, for defendant-appellee, Joseph Frazier Howell.

VAUGHN, Judge.

Plaintiff presents several assignments of error pertaining to her case against defendant Easter, contending that the court erred in directing a verdict in his favor. The directed verdict was appropriate only if the evidence, considered in the light most favorable to the plaintiff, would not justify a verdict in her favor. Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297 (1971). Plaintiff was not allowed to testify that in her opinion defendant Easter approached the intersection at 65 m.p.h. although she alleged that he was negligent in driving at an excessive speed. Plaintiff should have been allowed to state her opinion. Miller v. Kennedy, 22 N.C.App. 163, 205 S.E.2d 741 (1974), cert. den., 285 N.C. 661, 207 S.E.2d 755; Herring v. Scott, 21 N.C.App. 78, 203 S.E.2d 341 (1974). That she had very little time to observe the oncoming car and form her opinion affects only the weight of her testimony, not its admissibility. Nevertheless, the plaintiff has not shown prejudicial error. Even had her evidence concerning Easter's speed been admitted, it did not show actionable negligence on his part. In Hout v. Harvell, 270 N.C. 274, 154 S.E.2d 41 (1967), the Court held on similar facts that where there is no fact or circumstance alleged which would have given the oncoming driver timely notice that the driver of the car in which plaintiff was a passenger intended to make an unsafe turn in front of him, then the oncoming driver's speed, even if negligent, is not shown to have been a proximate cause of plaintiff's injuries. There is no evidence in this case from which a jury could have found that Howell began his turn at a time so as to make Easter's speed a proximate cause of the accident. Plaintiff testified that when she first saw the Easter vehicle coming toward her, the Easter vehicle was about one hundred and sixty-five feet away and traveling on a major highway. She also testified that to the best of her recollection, she saw the headlights before Howell began to make his turn. Easter testified that he first saw Howell when he was 300 feet away and that Howell appeared to be moving slowly into the intersection. When Easter was about 50 feet from the intersection, Howell suddenly pulled into his lane of traffic. Where the intervening negligent act was not such that it ought to have been foreseen by Easter, that act properly insulated him from liability. But for Howell's intervention, the speed of Easter's vehicle, even if excessive, would have resulted in no injury to the plaintiff. Easter's negligence, if any, was insulated by the negligence of Howell. See Hudson v. Petroleum Transit Co., 250 N.C. 435, 108 S.E.2d 900 (1959); Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808 (1940).

Another assignment of error relates to the amendment of defendant Howell's answer so as to conform to the evidence. G.S. 1A-1, Rule 15(b). The trial judge is allowed broad discretion in ruling on such motions. Markham v. Johnson, 15 N.C.App. 139, 189 S.E.2d 588 (1972), cert. den., 281 N.C. 758, ...