Ward v. McDonald
| Citation | 396 S.E.2d 337,100 N.C.App. 359 |
| Decision Date | 02 October 1990 |
| Docket Number | No. 895SC1351,895SC1351 |
| Parties | James M. WARD, Administrator of the Estate of James William Ward, Plaintiff, v. Larry McDONALD, Defendant. |
| Court | Court of Appeal of North Carolina (US) |
Shipman & Lea by Gary K. Shipman, Wilmington, for plaintiff-appellant.
Murchison, Taylor, Kendrick, Gibson & Davenport by Vaiden P. Kendrick and John L. Coble, Wilmington, for defendant-appellee.
The pertinent facts are as follows. On 13 October 1986 at approximately 9:30 p.m., James Ward (hereinafter "decedent," "intestate" or "Ward") was operating a 1981 Yamaha motorcycle in a southerly direction on U.S. Highway 117 approaching its intersection with Centennial Drive in New Hanover County. At the same time, defendant Larry McDonald was operating a 1986 Dodge truck in a northerly direction. Defendant's truck and Ward's motorcycle collided just as they approached the intersection of U.S. Highway 117 and Centennial Drive. Ward died as a result of the collision.
The testimonial account of James Richard Laughter, Sr., an employee of General Electric, is as follows. While traveling in a southerly direction on U.S. Highway 117 on 13 October 1986, he noticed a motorcycle behind him that was, in his opinion, traveling between 35 and 40 m.p.h. As he approached the turn lane for the southernmost entrance to the General Electric Plant outside of Wilmington, he slowed his vehicle to approximately 20 to 25 m.p.h. As he got midway down the turn lane, the motorcycle passed him going approximately 25 to 30 m.p.h. The motorcycle then proceeded down U.S. Highway 117 in a normal manner. At this time, the defendant's vehicle was stopped at the intersection waiting to turn left on to Centennial Drive. As the motorcycle proceeded in its lane of travel, he noticed that the traffic signal for traffic proceeding in a southerly direction was green. When the motorcycle reached a point approximately 20 feet from the intersection, defendant's truck turned into the path and struck the left side of James Ward's motorcycle. As a result of the collision, Ward was thrown approximately 41 feet. Although Ward's headlight was illuminated and his taillights were on, Laughter saw no brake lights come on the motorcycle as it entered the intersection.
At the time of the collision, Laughter was approximately 15 to 20 feet behind another car in the right-hand turn lane. The other car, driven by Kenneth Kornegay, was approximately 7 to 8 car lengths from the intersection when the accident occurred. Testimony illicted from Kornegay confirmed Laughter's statement that the signal for traffic proceeding south was green. He further testified that defendant's truck was stopped at the signal for northbound traffic, with his left-turn signal on. Kornegay did not, however, see the accident.
Trooper Howard L. Higgins of the North Carolina Highway Patrol testified that there were no skid marks at the point of impact which occurred in the middle of the southbound lane on U.S. Highway 117. As a result of his investigation, Trooper Higgins charged defendant with failing to yield the right of way and death by motor vehicle.
At trial, the parties stipulated, and the judge so instructed, that the total of the medical and funeral bills incurred by the plaintiff was $8,350.42.
On appeal, plaintiff brings forth six Assignments of Error. Defendant brings forth an additional three Assignments of Error on cross-appeal. Inasmuch as there is an appeal and a cross-appeal, we will first address the legal questions raised by plaintiff we believe to be decisive. We then will discuss the questions raised by defendant on cross-appeal.
First, plaintiff contends that the trial judge committed prejudicial error in remarking to the jury about the need to shorten the length of the trial. We disagree.
Unquestionably, G.S. § 1A-1, Rule 51(a) provides that:
... a judge shall not give an opinion as to whether or not a fact is fully or sufficiently proved and shall not be required to state, summarize or recapitulate the evidence, or to explain the application of the law to the evidence.
In the instances where a plaintiff alleges that he has been deprived of his right to a fair trial by improper remarks in the hearing of the jury, we must first determine whether the trial judge's remarks, in light of the circumstances under which they were made, were improper. We must then determine whether such remarks were prejudicial. State v. King, 311 N.C. 603, 320 S.E.2d 1 (1984).
After considering the complained of remarks made by the trial judge and the circumstances in which they were made, we find them to be something other than opinions. Assuming, arguendo, that the remarks were improper, we nonetheless find them to be lacking in prejudice. Accordingly, the trial court properly denied plaintiff's motion for a new trial. This assignment is overruled.
Second, plaintiff contends that the trial court erred in admitting testimony that the decedent did not have a motorcycle endorsement at the time of the accident. We disagree.
G.S. § 20-7(al) provides that
[n]o operator's or chauffer's license issued on or after October 1, 1979 shall authorize the licensee to operate a motorcycle unless the license has been appropriately endorsed by the Division to indicate that the licensee has passed special road and written (or oral) tests demonstrating competence to operate a motorcycle....
A violation of the above-quoted statute is negligence per se. See Hoke v. Greyhound Corporation, 226 N.C. 692, 40 S.E.2d 345 (1946). According to the uniform decisions of this Court, the violation of a statute imposing a rule of conduct in the operation of a motor vehicle and enacted in the interest of safety has been held to constitute negligence per se, but before the person claiming damages for injuries sustained can be permitted to recover he must show a causal connection between the injury received and the disregard of the statutory mandate. (Emphasis in original.)
Aldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331 (1954). "What is the proximate cause of an injury is ordinarily a question for the jury to decide." Hoke, supra, 226 N.C. at 698, 40 S.E.2d at 350. It is to be determined in light of the surrounding circumstances. Id.
Under the facts in the instant case, it was clearly negligence per se for the decedent, who lacked a motorcycle endorsement at the time of the accident, to have been driving a motorcycle in this State. Such negligence, however, is not actionable unless his failure to have the proper endorsement was either the proximate cause or one of the proximate causes of his death. Id. Having reviewed the complained of evidence, we find that the testimony of Trooper Higgins that Ward did not have a motorcycle endorsement at the time of the accident was offered on the issue of contributory negligence. While the issue of whether the decedent was contributorily negligent was not submitted to the jury, the jury was subsequently instructed not to consider this affirmative defense. In the absence of evidence showing that the jury acted contrary to the court's instructions, we find no prejudicial effect of Trooper Higgins' testimony. This assignment is overruled.
Last, plaintiff contends that the trial court abused its discretion in failing to award plaintiff a new trial on the issue of damages. Based upon the applicable standard of appellate review and the evidence presented at trial, we find no abuse of discretion.
The standard for appellate review of a trial court's discretionary ruling either granting or denying a motion to set aside a verdict and order of a new trial is prohibitive. Pearce v. Fletcher, 74 N.C.App. 543, 328 S.E.2d 889 (1985). As previously set forth, the inherent and traditional principles provide that appellate review "is strictly limited to the determination of whether the record affirmatively demonstrates a manifest abuse of discretion by the judge." Worthington v. Bynum, 305 N.C. 478, 482, 290 S.E.2d 599, 602 (1982). "[A] manifest abuse of discretion must be made to appear from the record as a whole with the party alleging the existence of an abuse bearing the heavy burden of proof." Id. at 484-85, 290 S.E.2d at 604. Realizing that such principles are well entrenched, we nevertheless find it necessary to reaffirm settled law.
While the necessity for exercising this discretion, in any given case, is...
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