Radford v. Norris

• Decision Date: 02 April 1985
• Docket Number: No. 8410SC774,8410SC774
• Citation: 74 N.C.App. 87,327 S.E.2d 620
• Parties: Robert Earl RADFORD Plaintiff/Appellant, v. James Lloyd NORRIS and Becky Ann Norris, Defendant/Appellees.
• Court: North Carolina Court of Appeals

Page 620

327 S.E.2d 620

74 N.C.App. 87

Robert Earl RADFORD Plaintiff/Appellant, v. James Lloyd NORRIS and Becky Ann Norris, Defendant/Appellees.

No. 8410SC774.

Court of Appeals of North Carolina.

April 2, 1985.

Van Camp, Gill & Crumpler, P.A. by William B. Crumpler, Raleigh, for plaintiff/appellant.

Moore, Ragsdale, Liggett, Ray & Foley, P.A. by Jane Flowers Finch, Raleigh, for defendant/appellees.

WELLS, Judge.

The only question presented is whether the court erred in instructing on contributory negligence. We hold that it did and award a new trial.

In determining the sufficiency of the evidence to justify submission of contributory negligence, we consider defendant's evidence in the light most favorable to her, with all reasonable inferences therefrom, and disregard plaintiff's evidence except to the extent favorable to defendant. Jones v. Holt, 268 N.C. 381, 150 S.E.2d 759 (1966). Evidence which merely raises a conjecture as to plaintiff's negligence will not support an instruction. Id. However, since negligence usually involves issues of due care and reasonableness of actions under the circumstances, it is especially appropriate for determination by the jury. See Haddock v. Smithson, 30 N.C.App. 228, 226 S.E.2d 411, disc. rev. denied, 290 N.C. 776, 229 S.E.2d 32 (1976). In "borderline cases," fairness and judicial economy suggest that courts should decide in favor of submitting issues to the jury. Cunningham v. Brown, 62 N.C.App. 239, 302 S.E.2d 822, disc. rev. denied, 308 N.C. 675, 304 S.E.2d 754 (1983). These policies ought to apply especially where the subject matter is particularly familiar to lay jurors, as in this case.

The court instructed on two theories of contributory negligence: that plaintiff (1) failed to maintain a proper lookout and (2) failed to keep his vehicle under proper control. The duty to maintain a proper lookout requires that the operator of a motor vehicle be reasonably vigilant, and that he or she anticipate the presence of others. Tarrant v. Bottling Co., 221 N.C. 390, 20 S.E.2d 565 (1942). This duty of care is mutual. Id. Thus, a motorist has no duty, except in unusual circumstances not applicable here, to anticipate the negligence of others. Riggan v. Highway Patrol, 61 N.C.App. 69, 300 S.E.2d 252, disc. rev. denied, 308 N.C. 387, 302 S.E.2d 253 (1983). See generally 7A Am.Jur.2d Automobiles and Highway Traffic §§ 416-17 (1980). The fact of accident, standing alone, does not mean a driver failed to keep a proper lookout. See Lane v. Dorney, 250 N.C. 15, 108 S.E.2d 55 (1959), rev'd on other grounds on rehearing, 252 N.C. 90, 113 S.E.2d 33 (1960). There must be some proof of negligence. Id.

If there is no showing of what a careful lookout would have disclosed and what effective precautionary action the driver could have taken to avoid the accident, then there is no basis for submitting to the jury the question whether the driver was negligent in failing to maintain a proper lookout.

40 Am.Jur. Proof of Facts 2d, Driver's Failure to Maintain a Proper Lookout § 1 (1984). Applying these principles, we conclude that the evidence did not support an instruction on contributory negligence on this issue, even in light of the policy discussed above.

Plaintiff's evidence showed that he saw defendant's car from at least eighty feet away. He observed it move forward, as if to enter 401 North in front of him, and he slowed down. When he saw defendant stop and "get situated," he resumed acceleration, it appearing to him that defendant was aware of him. Plaintiff's estimates of his speed range from thirty to forty-five m.p.h.; the speed limit on 401 North was forty-five m.p.h. Plaintiff testified that he observed that defendant was actually pulling out in front of him when he was twenty feet away. Defendant's evidence was that she and her passenger did not see a motorcyclist, and that she pulled out into 401 North. The passenger screamed, and defendant attempted to turn but was struck immediately. We find nothing in this evidence to suggest how plaintiff might have kept a better lookout. Even if he had seen defendant from a greater distance, that would be irrelevant to what action he might have taken when she pulled out in front of him. Nothing suggests that plaintiff only saw defendant for the first time as she pulled out in front of him. Instead, all the evidence showed that he observed her car earlier and had already taken some precautionary measures. We conclude that this evidence did not support on instruction on failure to keep a proper lookout.

The physical facts do not compel a different result. There is no evidence that plaintiff was driving anywhere but straight down his lane of 401 North for at least 100 feet before impact. There were only twenty-eight feet of scuff marks at the scene; plaintiff testified that the car dragged him about ten feet. Defendant makes much of the fact that plaintiff had cut through a parking lot and had accelerated rapidly. This evidence had no relevance to whether plaintiff maintained a proper lookout once he entered his travel lane on 401 North.

White v. Greer, 55 N.C.App. 450, 285 S.E.2d 848 (1982), cited by defendant as controlling, is clearly distinguishable. That case involved a collision between a motorcycle and a car turning left from the same street across its path. The plaintiff, a motorcyclist, admitted seeing the defendant's car, with its turn signal on, some 275 feet away. The plaintiff left sixty-two to eighty-eight feet of skid marks before striking the right rear of the defendant's car. Here, on the other hand, taking the evidence in the light most favorable to the defendant, it showed that plaintiff saw her from about 100 feet away, when she was stopped, and that at some point thereafter she pulled out in front of him. Plaintiff left only approximately twenty feet of skid marks before impact. The inattention clearly inferrable in White simply was not suggested by these facts.

The second theory of contributory negligence charged on by the court was that plaintiff failed to maintain proper control of his vehicle. Maintaining proper control means driving in such a manner that the vehicle "can be stopped quickly or with a reasonable degree of...