Stutts v. Adair

• Decision Date: 20 June 1989
• Docket Number: No. 8810SC974,8810SC974
• Citation: 380 S.E.2d 411,94 N.C.App. 227
• Court: North Carolina Court of Appeals
• Parties: Royce E. STUTTS, Administrator of the Estate of Deborah Lee Stutts v. Duane Lee ADAIR.

Page 411

380 S.E.2d 411

94 N.C.App. 227

Royce E. STUTTS, Administrator of the Estate of Deborah Lee Stutts v. Duane Lee ADAIR.

No. 8810SC974.

Court of Appeals of North Carolina.

June 20, 1989.

Page, Page, & Webb by John T. Page, Jr. and Alden B. Webb, Rockingham, for plaintiff-appellee.

LeBoeuf, Lamb, Leiby & MacRae by George R. Ragsdale and Albert D. Barnes, Raleigh, for defendant-appellant.

BECTON, Judge.

This is a civil case in which plaintiff, Royce E. Stutts, as administrator of the estate of Deborah Lee Stutts, his daughter, seeks to recover damages from defendant, Duane Lee Adair, for the wrongful death of Ms. Stutts. Following a trial, a jury found that defendant negligently caused Ms. Stutts' death and awarded plaintiff damages of $55,000. From the judgment entered, defendant appeals. We affirm.

On 12 March 1986, Deborah Stutts was driving south on Falls of the Neuse Road in Raleigh. At the intersection of Falls of the Neuse and Newton Roads, her automobile collided with a pick-up truck driven by Mr. Adair. Ms. Stutts died from the injuries she suffered in the accident.

The evidence at trial showed that Mr. Adair, at the time of the crash, was attempting to turn left, from the northbound lane of Falls of the Neuse Road, onto Newton Road. Traffic at this intersection is governed by signal lights. Plaintiff's evidence tended to show that the lights regulating the north-south flow of traffic on Falls of the Neuse Road were a solid green when Mr. Adair attempted to turn. A sign instructed left-turning vehicles to yield to through traffic when the light was solid green. Mr. Adair and his father, a passenger in the truck, testified that at the time of the accident, the light directing vehicles in their lane showed a green arrow.

The evidence further showed that Ms. Stutts was 34 years old at the time of her death, and that she was unmarried and childless. Among her survivors were Royce and Ophelia Stutts, her parents. Ms. Stutts was an employee of First Citizens Bank and Trust Company, and she held a week-end job as a bartender.

Other facts necessary to our disposition of this case will be discussed as they relate to defendant's assignments of error, to which we now turn.

I

Defendant first assigns error to the trial judge's refusal to instruct the jury on Ms. Stutts' duty not to drive at a speed greater than was reasonable and prudent under the conditions existing at the time of the accident. See N.C.Gen.Stat. Sec. 20-141(a) (Supp.1988). In a related exception, defendant argues that the judge erred by failing to instruct on Ms. Stutts' duty to decrease her speed to the extent necessary to avoid the collision. See N.C.Gen.Stat. Sec. 20-141(m) (Supp.1988).

It is true that a person must "at all times drive with due caution and circumspection" and may not exceed a reasonable and prudent speed dictated by the prevailing conditions. Kolman v. Silbert, 219 N.C. 134, 137, 12 S.E.2d 915, 917 (1941). At the same time, it is "the duty of the trial judge to instruct the jury on the law as it apllies to the substantive features of the case arising on the evidence" Millis Constr. Co. v. Fairfield Sapphire Valley, Inc., 86 N.C.App.506, 509, 358 S.E.2d 566, 568 (1987) (emphasis added) and (citations omitted). Defendant contends that he proffered "abundant evidence" at trial to warrant an instruction on the duty required by Section 20-141(a). He argues that the following evidence suggested a breach by Ms. Stutts of her duty to observe a reasonable and prudent speed: (1) the physical damage to the two vehicles; (2) the death of Ms. Stutts; (3) the "complex series of stop lights" at Falls of the Neuse and Newton Roads; (4) the presence at that intersection of a fast-food mart "with its potential for cars attempting to enter or exit from the northbound lanes"; (5) "numerous police officers and vehicles" in the parking lot of a First Citizens Bank building at the corner of Falls of the Neuse and Newton and yellow tape cordoning off the building (the evidence at trial showed the bank had been robbed approximately one hour before the accident; this branch of First Citizens Bank was not the one at which Ms. Stutts worked); and (6) Ms. Stutts' failure to slow down or to sound her horn when Mr. Adair turned into her path.

We have reviewed the testimony and certain of the exhibits presented at trial, and we agree with the trial judge that defendant presented no evidence that Ms. Stutts may have breached her duty to drive at a reasonable and prudent speed. We reject defendant's contention that the configuration of the stop lights, the fast-food mart, and the police vehicles in the bank parking lot "heightened" Ms. Stutts' duty under Section 20-141(a) and required the judge to submit defendant's requested instruction notwithstanding the absence of any evidence about Ms. Stutts' rate of speed. Further, none of the evidence indicated that Ms. Stutts saw, or should have seen, defendant turn in front of her in time for her to slow down or to sound her horn. Thus, her failure to do either of these was not evidence that she exceeded a prudent speed.

Defendant has laid much emphasis on the damage sustained by the vehicles involved in this accident. He also finds Ms. Stutts' death from the injuries she suffered in the crash as probative of the "force of impact" and thus, of her rate of speed. At trial, defendant introduced photographs taken after the collision of Ms. Stutts' car and of Mr. Adair's truck, and these photographs have been reviewed by us. Defendant contends that "the physical evidence of destruction is a compelling testament to the decedent's excessive speed." We disagree. While "[t]he physical facts at the scene of an accident may disclose that the operator of the vehicle was traveling at excessive speed," Keller v. Security Mills of Greensboro, Inc., 260 N.C. 571, 573, 133 S.E.2d 222, 224 (1963) (citations omitted), extensive damage to the vehicles is not, by itself, evidence of such speed. See Beauchamp v. Clark, 250 N.C. 132, 136, 108 S.E.2d 535, 538 (1959) (fact that truck and tractor-trailer collided with such force as to substantially damage vehicles did not require conclusion that truck was operated at such high rate of speed as to demonstrate violation of statute or rule of prudent person). "An automobile develops enough energy at 30 miles per hour to lift it 30 feet off the ground." 10 Am.Jur. Proof of Facts 748. At 20 miles per hour, a vehicle will strike a stationary object with the same force as if it had been dropped off a platform 13.5 feet high. Id. at 747. Absent more, we do not infer excessive speed from the vehicular damage in this case.

The fact that a person dies in an accident, moreover, is not evidence of that person's contributory negligence. See Crisp v. Medlin, 264 N.C. 314, 317, 141 S.E.2d 609, 611 (1965) (negligence not presumed from fact that a person has been killed). In Crisp, our Supreme Court said that the "grievous injuries" suffered by the decedents "indicate[d] that the automobile was traveling at a very rapid speed when it wrecked." Id. at 318, 141 S.E.2d at 612. Ms. Stutts had a deep laceration across her forehead following the accident. No evidence indicated that such an injury would have resulted only from a very rapid speed of travel. We do not infer from her wound that Ms. Stutts was exceeding a reasonable speed when she collided with defendant's truck.

A trial judge is not justified in instructing the jury on a principle of law not applicable to the evidence merely because a party pleads the breach of that law. Sugg v. Baker, 258 N.C. 333, 337, 128 S.E.2d 595, 597 (1962). Before the judge may submit the breach of a particular law or duty for jury determination, there must be both allegation and proof of the breach. Id. at 337, 128 S.E.2d at 597-98. Because, in this case, there was no evidence tending to indicate Ms. Stutts' speed at the time of the accident, we hold that the judge did not err by refusing to instruct the jury about Ms. Stutts' duty to drive at a reasonable and prudent speed.

In the same vein, we reject defendant's contention that the judge was required to instruct the jury about Ms. Stutts' duty to decrease her speed to the extent necessary to avoid the collision. Nothing in the record indicates that Ms. Stutts had the opportunity to slow down when Mr. Adair entered her path of travel. Rather, the evidence indicates that Mr. Adair, without the right of way, turned into Ms. Stutts' lane. There was no evidence that Ms. Stutts saw, or should have seen, Mr. Adair in time to react to his presence. See State v. Worthington, 89 N.C.App. 88, 92, 365 S.E.2d 317, 320 (1988), appeal dismissed, 322 N.C. 115, 367 S.E.2d 134 (1988) (Section 20-141(m) does not impose liability except in cases in which a reasonable and ordinarily prudent person could, and would, have decreased speed). The evidence being insufficient to suggest a breach of the duty to decrease speed, the judge correctly refused to instruct on that duty.

Defendant cites our recent decision in Hinnant v. Holland, 92 N.C.App. 142, 374 S.E.2d 152 (1988), disc. rev. denied, 324 N.C. 335, 378 S.E.2d 792 (1989), for the proposition that, in a traffic-accident case, a judge's failure to give an instruction on the duty to decrease speed is error. Defendant misreads Hinnant. In contrast to this case, evidence was adduced at the Hinnant trial about the speed of the vehicle. Guided by our Supreme Court's holding in Pittman v. Swanson, 255 N.C. 681, 122 S.E.2d 814 (1961), a case in which evidence of speed was also introduced at trial, we held in Hinnant that when the evidence suggests a breach of the duty to decrease speed, it is error for the trial judge to fail to submit that instruction, even if the judge does instruct on the driver's duty to observe a reasonable and prudent speed under the existing conditions. A critical distinction between this case and Hinnant is that, here, no evidence concerning...