Smith v. Pass

• Decision Date: 05 September 1989
• Docket Number: No. 8817SC1262,8817SC1262
• Citation: Smith v. Pass, 382 S.E.2d 781, 95 N.C.App. 243 (N.C. App. 1989)
• Parties: Marjorie SMITH v. Amos PASS, First Piedmont Corporation and Dennis Wade Marshall.
• Court: North Carolina Court of Appeals

Page 781

382 S.E.2d 781

95 N.C.App. 243

Marjorie SMITH v. Amos PASS, First Piedmont Corporation and Dennis Wade Marshall.

No. 8817SC1262.

Court of Appeals of North Carolina.

Sept. 5, 1989.

Ramsey, Cioffi & Abell by Andrew P. Cioffi and James E. Ramsey, Roxboro, for plaintiff-appellee.

Henson Henson Bayliss & Teague by Perry C. Henson and Gary K. Sue, Greensboro, for defendants-appellants, First Piedmont Corp. and Dennis Marshall.

Adams Kleemeier Hagan Hannah & Fouts by Joseph W. Moss and Trudy A. Ennis, Greensboro, for defendant-appellee, Amos Pass.

LEWIS, Judge.

This is a negligence action. The record reveals the following sequence of events. On 30 December 1985 at approximately 8:35 a.m. defendant Dennis Marshall (Marshall), while within the scope of his employment, was operating Piedmont's garbage truck on Rural Road 1554 in Caswell County. He was traveling in a westerly direction. In order to pick up the garbage at customer Annie Swann's (Swann) house, Marshall pulled the truck off onto the opposite shoulder of the paved road in front on the Swann's driveway so that it was facing on-coming eastbound traffic. Marshall and his co-worker exited the vehicle, loaded the garbage and were preparing to drive off when a passenger van driven by Pass and occupied by plaintiff, Marjorie Smith (Smith) and nine other passengers collided head-on with the right front portion of Piedmont's truck. Plaintiff and Pass allegedly suffered physical injury and Pass' van was damaged.

Plaintiff sued Pass for negligence alleging, among other things, failure to properly control the van, failure to maintain a proper lookout, excessive speed and reckless driving. Plaintiff also sued Marshall and Piedmont alleging common law negligence and negligence per se for violations of G.S. 20-161(a) and (b); and 20-146 of the North Carolina Motor Vehicle Code. Pass and Piedmont/Marshall filed cross-claims against each other alleging negligence, contributory negligence, indemnification and contribution.

The case was tried before a jury which found Piedmont, through its employee Marshall, negligent and awarded $32,500.00 to plaintiff Smith and $15,000 to Pass. Pass was found not negligent and not contributorily negligent. On 12 April 1985 the trial court entered an order denying Piedmont/Marshall's motions for directed verdict, judgment notwithstanding the verdict and a new trial. Piedmont/Marshall appeal the entry of judgment and the court's order denying their motions. Pass cross appeals under App.R. 10(d).

I. Piedmont/Marshall Appeal

Piedmont/Marshall bring forth numerous assignments of error which can be divided into three basic categories. The first category involves the trial court's alleged erroneous admission or omission of various evidence and testimony. The second involves the trial court's instructions to the jury. The third deals with the lower court's denial of their post-trial motions.

a. Evidence

Piedmont/Marshall allege that the trial court committed prejudicial error in admitting evidence concerning a subsequent accident occurring on 31 December 1985 on this same Rural Road 1554 and involving one of Piedmont's garbage trucks and another vehicle. Specifically, they contend that the facts surrounding the 31 December accident were too dissimilar to the facts of the 30 December accident to permit their admission and alternatively that G.S. 8C-1, Rule 407, which disallows evidence of subsequent remedial action, prohibits their admission.

Our court has held that, "[w]hen substantial identity of circumstances and reasonable proximity in time is shown, evidence of similar occurrences or conditions may, in negligence actions, be admitted as relevant to the issue of negligence." Murrow v. Daniels, 85 N.C.App. 401, 405, 355 S.E.2d 204, 208 (1987), rev'd on other grounds, 321 N.C. 494, 364 S.E.2d 392 (1988), quoting, Brandis N.C. Evidence Section 89 (1982).

The evidence here reveals that on 31 December 1985, officers and employees of Piedmont, in an attempt to assess the safety and reasonableness of Marshall's actions on 30 December, placed another garbage truck of similar size and weight in the same location as the truck driven by Marshall the day before, at the same time of day. At approximately 9:00 a.m. a car driven in an easterly direction by George Moore collided with the right front portion of Piedmont's truck. The officer, who investigated both accidents, testified that the road and weather conditions as well as the location of the truck were nearly identical. Although testimony also revealed that there were some slight differences in the exact size and position of the truck and the time of the accident, we are of the opinion that the similarities in time and circumstances far outweigh the differences. The trial judge properly allowed evidence of the 31 December accident to be admitted.

Further, we note that Piedmont/Marshall's argument as to 8C-1, Rule 407 is without merit. For the purpose of showing negligence, Rule 407 excludes evidence of measures taken after an event which would have made the event less likely to occur. There is no evidence that the actions taken by Piedmont on 31 December 1985 were remedial in nature. Testimony of Piedmont's own president, Ben Davenport (Davenport) reveals that the purpose of their actions was to assess whether Marshall's activities on 30 December were safe and proper. Thus, 8C-1, Rule 407 is not applicable to this situation.

Piedmont/Marshall next argues that the trial court erred in admitting testimony pertaining to other means and procedures used to pick up garbage at Swann's residence. They contend that such evidence is irrelevant and thus inadmissible under our rules of evidence. Alternatively they contend that even if relevant, the evidence's probative value is substantially outweighed by its prejudicial effect.

Marshall was allowed to testify at trial that until approximately one year prior to the 30 December accident, Swann's garbage was picked up by driving the truck up into her driveway but that such practice ceased after Swann requested the truck no longer use her driveway. Marshall stated that after he became aware of Swann's request he never used her driveway to pick up her garbage. Swann confirmed that she asked Piedmont not to use her drive but also testified that as recently as one to two weeks before the 30 December accident Piedmont employees used her driveway to pick up her garbage.

" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." G.S. 8C-1, Rule 401. However, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." G.S. 8C-1, Rule 403. Whether to exclude evidence under Rule 403 is a determination within the sound discretion of the trial court and our Court will not disturb its ruling absent a showing that such ruling was so arbitrary that it could not have resulted from a reasoned decision. State v. Jones, 89 N.C.App. 584, 367 S.E.2d 139 (1988).

Plaintiff alleged in her complaint that Piedmont/Marshall violated G.S. 20-161(a) and (b) which prohibits parking a vehicle on the travelled portion of a highway. Conversely, Piedmont/Marshall argued that the garbage truck was not "parked" under the meaning of the statute but had only stopped momentarily to pick up Swann's garbage and that Swann's instructions coupled with the physical limitations of the surrounding landscape made it necessary for Marshall to stop as he did.

In construing G.S. 20-161(a) our courts have defined "parking" to be more than a temporary or momentary stop for a necessary purpose. Adams v. Mills, 312 N.C. 181, 322 S.E.2d 164 (1984). In determining whether a violation of G.S. 20-161(a) has occurred, the trier of fact must consider whether the stop, even if temporary, was for a necessary purpose and " 'under such conditions that it [was] impossible to avoid leaving such vehicle in such a position.' " Melton v. Crotts, 257 N.C. 121, 129, 125 S.E.2d 396, 402 (1962), quoting Capital Motor Lines v. Gillette, 235 Ala. 157, 177 So. 881 (1937).

We find that evidence of the alternative method for collecting Swann's garbage prior to the accident as well as testimony revealing Marshall's rationale for stopping as he did on 30 December is relevant not only to the issue of whether Piedmont/Marshall violated G.S. 20-161(a) and (b) but also to the issue of Marshall's alleged negligent conduct and is thus admissible under G.S. 8C-1, Rule 401. Further, we find that defendant failed to show that the judge abused his discretion in allowing the evidence to be admitted or that the effect of its admission was so prejudicial that it outweighed its probative value so as to warrant exclusion under G.S. 8C-1, Rule 403.

Piedmont/Marshall's next contention is that the court erred in excluding certain testimony of expert meteorologist William Haggard (Haggard) concerning weather conditions, sun location, visibility and steps drivers could take to eliminate the glare of the early morning sun. The record reveals that at the conclusion of voir dire examination, the trial judge allowed Dr. Haggard to testify as to his observations as a meteorologist of the 30 December 1985 weather records as well as to the various atmospheric and climate conditions as they existed on 30 December 1985 and 1987, and as to his findings with regard to the location of the sun in terms of degrees, horizon and movement from east to west. The only testimony the judge excluded was Haggard's opinion testimony regarding visibility and glare finding that there had not been a sufficient show of similarity of conditions on 30 December 1985 and on 30 December 1987...