Masciulli v. Tucker
| Decision Date | 05 August 1986 |
| Docket Number | No. 8510SC1308,8510SC1308 |
| Citation | 346 S.E.2d 305,82 N.C.App. 200 |
| Parties | Gwendolyn R. MASCIULLI, Individually and as Guardian Ad Litem for Tara Masciulli, a minor, v. Charles Albert TUCKER and Terri Lin Kleckner. |
| Court | North Carolina Court of Appeals |
Currie, Pugh & Davis by E. Yvonne Pugh, Raleigh, for plaintiff-appellant.
Bailey, Dixon, Wooten, McDonald, Fountain & Walker by Gary S. Parsons, Raleigh, for defendants-appellees.
Plaintiff assigns error to the trial court's refusal to instruct the jury on the law pertaining to evidence offered by plaintiff on defendant's failure to keep a proper lookout and to keep the automobile under proper control. Plaintiff, in her brief, correctly cites Beanblossom v. Thomas, 266 N.C. 181, 146 S.E.2d 36 (1966), for the following principle:
Unless the driver of the leading vehicle is himself guilty of negligence, or unless an emergency is created by some third person or other highway hazard; the mere fact of a collision with the vehicle ahead furnishes some evidence that the motorist in the rear was not keeping a proper lookout or that he was following too closely.
Id. at 188, 146 S.E.2d at 42 (emphasis supplied) (citations omitted). Defendants argue that the foregoing is merely dicta. We disagree. Our understanding of Beanblossom, supra, is that the foregoing statement of the law was necessary to the Court's holding with respect to that appellant's assignments of error relating to the jury charge in which the trial court attempted to apply the doctrine of foreseeability. Id. at 187, 146 S.E.2d at 41 (citations omitted). In Beanblossom, supra, the Court also aptly stated the following:
In the absence of anything which should alert him to the danger, the law does not require a motorist to anticipate specific acts of negligence on the part of another. It does, however, fix him with notice that the exigencies of traffic may, at any time, require a sudden stop by him or the motor vehicle immediately in front of him. Constant vigilance is an indispensible requisite for survival on today's highways and a motorist must take into account 'occasional negligence which is one of the incidents of human life.' He must bear in mind that every operator of a motor vehicle on the highway is constantly confronted with the possibility of a collision with other vehicles, pedestrians, or animals; that blowouts and mechanical failures, highway and weather conditions, as well as innumerable other factors, can create sudden hazards. It follows therefore, that a reasonably prudent operator will not put himself unnecessarily in a position which will absolutely preclude him from coping with an emergency.
Id. at 187-88, 146 S.E.2d at 41 (emphasis supplied) (citations omitted). The evidence in the case sub judice was that defendant Kleckner was operating the automobile under conditions in which it was raining and the pavement was wet; that she was able to discern that she was approaching an automobile in her lane of travel; that she saw the brake lights on the automobile but mistook the brake lights for taillights and assumed that the automobile was moving, but once realizing that the automobile was in fact stopped, she slammed on her brakes too late to avoid a rear end collision. Even without the testimony of two witnesses that a left turn signal was in operation, we hold that the foregoing constitutes sufficient evidence to raise an issue of fact for a jury to determine, to wit: whether defendant was maintaining a proper lookout. Evidence that a turn signal was in operation likewise raises a question for the jury to decide after being instructed on defendant's duty to maintain a proper lookout. The trial court's refusal to properly instruct the jury on the law regarding defendant's duty to maintain a proper lookout shielded defendant from possible liability. In this there was error. Should the jury have found that defendant did not maintain a proper lookout, it would have precluded a verdict that the doctrine of sudden emergency insulated defendant from liability.
Plaintiff next assigns error to the trial court's denial of her request for an instruction to the jury on the law arising from the evidence presented of defendant's failure to maintain proper control of the automobile. This request was also improperly ruled on by the trial court. Although the case of Redden v. Bynum, 256 N.C. 351, 123 S.E.2d 734 (1962), relied upon by plaintiff does provide us with some guidance, we note that the Court in Redden quoted the legal requirements of G.S. 20-141(c) which is no longer in effect. The Court stated the following:
The fact that the speed of a vehicle is less than the maximum limit provided by law 'shall not relieve the driver from the duty to decrease speed ... when special hazards exist with respect to ... other traffic or by reason of weather conditions, and speed shall be decreased as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and duty of all persons to use due care. G.S. 20-141(c). Failure to observe this statutory duty renders a motorist negligent; and such negligence may consist of traveling at excessive speed, failure to keep a proper lookout, or failure to maintain reasonable control of vehicle.
Redden, supra, at 354, 123 S.E.2d at 736. (emphasis supplied). The principle enunciated in Redden, supra, remains the same under the effective version of G.S. 20-141. There has been a refinement of the distinction between the interrelated allegations of driving at an excessive rate of speed and failure to maintain proper control. See Radford v. Norris, 74 N.C.App. 87, 327 S.E.2d 620, disc. rev. denied, 314 N.C. 117, 332 S.E.2d 483 (1985). The trial court in the case sub judice, upon plaintiff's request for a jury instruction stated This Court in Radford, supra, stated, "Maintaining proper control means driving in such a manner that the vehicle 'can be stopped quickly or with a reasonable degree of celerity, which does not mean instantly under any and all circumstances.' " Radford, supra, at 91, 327 S.E.2d at 623, quoting 7A Am.Jr.2d Automobiles and Highway Traffic sec. 415 (1980). The evidence in the case sub judice showed that defendant, while operating an automobile under hazardous conditions, perceived an automobile in her lane of travel, but despite her "slamming" on the brakes she was unable to maintain control of her automobile and slid into the rear end of the automobile in front of her. We hold the evidence in the case sub judice, to be sufficient under Redden, supra, to submit the issue for determination by the jury.
Plaintiff also contends the trial court committed prejudicial error in its instructions to the jury on the applicability of the doctrine of sudden emergency in the case sub judice. We agree.
The lawful duty required of every motorist driving upon the roads of this State is that, "A motorist is required in the exercise of due care to keep a reasonable and proper lookout in the direction of travel and is held to the duty of seeing what he ought to have seen."...
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