Hurley v. Miller

• Decision Date: 01 March 1994
• Docket Number: No. 9219SC1289,9219SC1289
• Citation: 113 N.C.App. 658,440 S.E.2d 286
• Court: North Carolina Court of Appeals
• Parties: Robert L. HURLEY, Individually and as Administrator of the Estate of Barbara Poole Hurley, deceased, Plaintiffs, v. Kevin Wayne MILLER, and Harvey Lee Smith, Jr., and Wife, Kelly Boger Smith, d/b/a HLS Trucking, and HLS Trucking, Inc., Defendants.

Page 286

440 S.E.2d 286

113 N.C.App. 658

Robert L. HURLEY, Individually and as Administrator of the Estate of Barbara Poole Hurley, deceased, Plaintiffs, v. Kevin Wayne MILLER, and Harvey Lee Smith, Jr., and Wife Kelly Boger Smith, d/b/a HLS Trucking, and HLS Trucking, Inc., Defendants.

No. 9219SC1289.

Court of Appeals of North Carolina.

March 1, 1994.

Wallace and Whitley by Michael Doran, Salisbury, for plaintiffs-appellants.

Wishart, Norris, Henninger & Pittman, P.A. by Kenneth R. Raynor and June K. Allison, Charlotte, for defendants-appellees.

EAGLES, Judge.

Plaintiffs bring forward two assignments of error. Plaintiffs assign error to the trial court's instructions regarding defendant's negligence and decedent's contributory negligence and assign error to the trial court's refusal to charge the jury on the issue of last clear chance as requested by plaintiffs pursuant to G.S. 1A-1, Rule 51(b). After a careful consideration of the briefs, record, and transcript, we: (1) find no error as to the trial court's instructions on the issues of negligence and contributory negligence, and; (2) remand for a new trial based on the trial court's failure to instruct the jury on the issue of last clear chance.

I.

In Millis Construction Co. v. Fairfield Sapphire Valley, 86 N.C.App. 506, 509-10, 358 S.E.2d 566, 568 (1987), this Court stated:

It is the duty of the trial judge without any special requests to instruct the jury on the law as it applies to the substantive features of the case arising on the evidence. Faeber v. E.C.T. Corp., 16 N.C.App. 429, 192 S.E.2d 1 (1972). When a party appropriately tenders a written request for a special instruction which is correct in itself and supported by the evidence, the failure of the trial judge to give the instruction, at least in substance, constitutes reversible error. Bass v. Hocutt, 221 N.C. 218, 19 S.E.2d 871 (1942); Faeber v. E.C.T. Corp., supra.

Regarding the burden placed upon appellant when error is assigned to an error in the trial court's charge to the jury, this Court, in Beck v. Carolina Power & Light Co., 57 N.C.App. 373, 380, 291 S.E.2d 897, 901-02, aff'd, 307 N.C. 267, 297 S.E.2d 397 (1982), has stated:

When an error in the judge's charge is asserted by the appellant as a basis for reversal of the verdict below, the burden is on that party not merely to demonstrate that the court's instructions were in error, but also to demonstrate that when the judge's instructions are considered in their entirety, as opposed to in fragments, the error was prejudicial to the appealing party's chance of success and amounted to the denial of a substantial right. Otherwise, reversal or a new trial is unwarranted. Gregory v. Lynch, 271 N.C. 198, 155 S.E.2d 488 (1967); Burgess v. Construction Co., 264 N.C. 82, 140 S.E.2d 766 (1965).

We proceed with an examination of plaintiffs' assignments of error.

II.

Plaintiffs argue that "[t]he trial court committed reversible error in failing to properly instruct the jury on the issues of Mrs. Hurley's contributory negligence and defendant Miller's negligence." We disagree.

Regarding the instruction on defendant's negligence, plaintiffs argue that the trial court erred by failing to instruct the jury that defendant violated G.S. 20-150 and was negligent per se. G.S. 20-150 (entitled "Limitations on privilege of overtaking and passing") provides:

(a) The driver of a vehicle shall not drive to the left side of the center of a highway, in overtaking and passing another vehicle proceeding in the same direction, unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in safety.

(b) The driver of a vehicle shall not overtake and pass another vehicle proceeding in the same direction upon the crest of a grade or upon a curve in the highway where the driver's view along the highway is obstructed within a distance of 500 feet.

(c) The driver of a vehicle shall not overtake and pass any other vehicle proceeding in the same direction at any railway grade crossing nor at any intersection of highway unless permitted so to do by a traffic or police officer. For the purposes of this section the words "intersection of highway" shall be defined and limited to intersections designated and marked by the Department of Transportation by appropriate signs, and street intersections in cities and towns.

(d) The driver of a vehicle shall not drive to the left side of the centerline of a highway upon the crest of a grade or upon a curve in the highway where such centerline has been placed upon such highway by the Department of Transportation, and is visible.

(e) The driver of a vehicle shall not overtake and pass another on any portion of the highway which is marked by signs, markers or markings placed by the Department of Transportation stating or clearly indicating that passing should not be attempted.

(f) The foregoing limitations shall not apply upon a one-way street nor to the driver of a vehicle turning left in or from an alley, private road, or driveway.

Regarding the issue of contributory negligence, plaintiffs, relying on Walker v. Bakeries Co., 234 N.C. 440, 67 S.E.2d 459 (1951), argue that they "requested that the jury be instructed that 'Mrs. Hurley ... is not required to anticipate that the overtaking motorist, defendant Miller, will attempt to pass in violation of the statute.' " (Alteration in original.) Specifically, plaintiffs' requested instruction stated as follows:

Although G.S. 20-150(d) is designed primarily to prevent collision between an overtaking automobile and a vehicle coming from the opposite direction, its provisions are germane to litigation between an overtaking motorist, such as Mr. Miller, and Barbara Hurley, the driver of an overtaken vehicle, when, as here, the collision occurred while the defendant Miller attempted to pass Barbara Hurley upon a marked curve. In this regard, Mrs. Hurley, the driver of the overtaken vehicle, is not required to anticipate that the overtaking motorist, defendant Miller, will attempt to pass in violation of the statute.

We find Walker, the case cited by plaintiffs, readily distinguishable. Plaintiffs quote Walker for the proposition that "when attempting to turn left across a lane of travel which is in a no passing zone, the overtaken motorist 'is certainly not required in such case to anticipate that the latter will attempt to pass in violation of the statute.' [Id. at 443,] 67 S.E.2d at 461." However, in Walker, there was no initial act of negligence on the part of the plaintiff; whereas here, decedent's initial act of negligence occurred when she parked her car halfway, instead of entirely, on the shoulder of the road, thus deliberately preventing the free flow of traffic apparently for the sake of convenience given the proximity of her car to the mailbox. (Plaintiffs state in their brief that "[i]f she [decedent] were negligent, in any way, her negligence arose from being stationary on the highway for reasons apparently unrelated to traffic flow.") Decedent's initial act of negligence justified the shift of defendant's vehicle to the left of the center line in this no passing zone. See G.S. 20-146(a) ("Upon all [highways] of sufficient width a vehicle shall be driven upon the right half of the highway except as follows: ... (2) When an obstruction exists making it necessary to drive to the left of the center of the highway; provided, any person so doing shall yield the right-of-way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard."). Given that defendant Miller was driving a multi-ton truck and apparently did not have an opportunity to stop if he had remained in the southbound (right-hand) lane of travel, we conclude on this record that defendant Miller had to enter the northbound (left-hand) lane of travel in his attempt to avoid the collision. Concomitantly, because of her initial act of negligence, decedent had the duty to check for vehicles approaching from behind her when she made the sudden and immediate turn to the left, which the uncontroverted evidence shows was made without activation of her vehicle's left turn signal. See generally, Saunders v. Warren, 267 N.C. 735, 737-38, 149 S.E.2d 19, 20-21 (1966) (" 'So the driver of the stopped vehicle must take such precautions as would reasonably be calculated to prevent injury, whether by the use of lights, flags, guards, or other practical means, and failing to give such warning may constitute negligence' "). We note that this factual situation involving defendant Miller's decision to attempt to pass decedent's vehicle (the obstruction) is clearly distinguishable from a factual situation in which no obstruction exists and in which a defendant voluntarily passes a plaintiff's vehicle due to mere impatience or inadvertence in clear contravention of a statute.

Furthermore, the factual situation presented here is inappropriate for the application of negligence per se. Regarding the doctrine of negligence per se, our Supreme Court has stated:

It is the generally accepted view that the violation of a statute enacted for the safety and protection of the public constitutes negligence per se, i.e., negligence as a matter of law. The statute prescribes the standard, and the standard fixed by the statute is absolute. The common law rule of ordinary care does not apply--proof of the breach of the statute is proof of negligence. The violator is liable if injury or damage results, irrespective of how careful or prudent he has been in other respects. No person is at liberty to adopt other methods and precautions which in his opinion are equally or more efficacious to avoid injury. But causal connection between the violation and the injury or damage sustained must be shown; that is to say, proximate cause must be established. In...