City of Winston-Salem v. Rice , 16 N.C. App. 294 ( 1972 )

192 S.E.2d 9 (1972) 16 N.C. App. 294

CITY OF WINSTON-SALEM
v.
Letitia C. RICE.

No. 7221DC655.

Court of Appeals of North Carolina.

October 25, 1972. Certiorari Denied December 5, 1972.

Womble, Carlyle, Sandridge & Rice, by Allan R. Gitter and Roddey M. Ligon, Jr., Winston-Salem, for plaintiff appellant.

Deal, Hutchins & Minor, by William Kearns Davis, Winston-Salem, for defendant appellee.

Certiorari Denied by Supreme Court December 5, 1972.

BRITT, Judge.

Plaintiff contends that the trial judge erred in entering judgment for defendant notwithstanding the jury verdict for plaintiff on the ground that plaintiff was contributorily negligent as a matter of law. As to this contention we agree with plaintiff.

It is established that a motion for a directed verdict or judgment n. o. v. presents substantially the same question as that presented by a motion for nonsuit under former G.S. § 1-183. Kelly v. International Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971); Sadler v. Purser, 12 N. C.App. 206, 182 S.E.2d 850 (1971). Therefore, the statement in Mims v. Dixon, 272 N.C. 256, 158 S.E.2d 91 (1967), that whether a motion for nonsuit on the ground of contributory negligence is to be granted or the issue submitted for jury determination must be decided after considering the facts of each particular case also applies as the proper test for disposition of a motion for a directed verdict or judgment n. o. v. under our new code of civil procedure.

Our research reveals that a majority of jurisdictions by statutes or ordinances exempt emergency vehicles (such as police cars, ambulances and fire department apparatus) from strict compliance with traffic regulations. However, the allowance of these special privileges (which include traveling through a red traffic light and exceeding speed limits) has been held generally not to relieve the operator of the emergency vehicle from the exercise of ordinary, reasonable care commensurate with the circumstances. 7 Am.Jur.2d, Automobiles and Highway Traffic, §§ 206, 357; Finderne Engine Co. v. Morgan Trucking Co., 98 N.J.Super. 421, 237 A.2d 624 (1968); Freeman v. Reeves, 241 Ark. 867, 410 S.W.2d 740 (1967); Myers v. Able, (Ky.), 417 S.W.2d 235 (1967); Clark v. Sterrett, (Ind.App.), 220 N.E.2d 779 (1966); Merkel v. Scranton, 202 Pa.Super. 15, 193 A.2d 644 (1963); Norman v. Shreveport, (La.App.), 141 So. 2d 903 (1962); Rosenstiel v. Weigel, 117 Ohio App. 383, 184 N.E.2d 772 (1962); Torres v. Los Angeles, 58 Cal. 2d 35, 22 Cal. Rptr. 866, 372 P.2d 906 (1962); Baltimore v. Fire Ins. Salvage Corps., 219 Md. 75, 148 A.2d 444 (1959). In Spittle v. Charlotte Electric R.R., 175 N.C. 497, 95 S.E. 910 (1918), an intersection accident case involving a fire truck, the court held that the question of contributory negligence was one of fact for the jury.

Plaintiff's ordinances grant special privileges to emergency vehicles including that of "proceeding past a red or stop signal or stop sign," but as the emphasized parts of the ordinances indicate these privileges are not absolute. The driver of an emergency vehicle is not relieved from the standard of due care commensurate with the circumstances but must drive with regard for the safety of all persons. A like interpretation was given in Williams v. Sossoman's Funeral Home, 248 N.C. 524, 529, 103 S.E.2d 714, 718 (1958) wherein the court in construing a similar Morganton ordinance as it applied to a collision involving an ambulance and an automobile said:

". . . [T]he ordinance of Morganton which permits ambulances to ``proceed past red or stop signals' does not require the siren to be sounded, but it does limit their right to proceed ``only after slowing down as may be necessary for operation.' This necessarily means, we think, that the special privilege can only be exercised when the ambulance can proceed with safety to others who have a legal invitation to use the intersection. To give it any other interpretation would change an ordinance intended to facilitate the safe movement of vehicles across intersecting highways into a trap for those invited to enter."

Having concluded that the fire truck belonging to plaintiff could proceed against the red light only through the exercise of due care by slowing down as "necessary for safe operation," we must examine plaintiff's evidence to determine if it meets this test. Plaintiff's evidence, if believed, would support a finding that at the time of the collision herein complained of, the fire truck's red dome light and siren were both in operation, northbound traffic on Cherry Marshall was stopped to permit the fire truck to traverse the intersection in a westerly direction, the driver of the fire truck saw no traffic in the southbound lanes, and although the huge fire truck did not stop it proceeded through the intersection facing a red light only after slowing down to a speed of between 10 and 12 miles per hour.

We hold that the facts in this case presented a jury question as to contributory negligence and the trial judge erred in setting aside the verdict and entering judgment n. o. v. on the ground that plaintiff was contributorily negligent as a matter of law.

In its next assignment of error plaintiff contends the trial judge erred in granting defendant's motion in the alternative for a new trial on the issue of damages should the judgment n. o. v. be vacated or reversed on appeal. Pursuant to G. S. § 1A-1, Rule 50(c)(1), the district court conditionally granted defendant's motion for a new trial on the grounds that plaintiff failed to supply evidence as to the fair market value of its damaged property before and after the accident and that the evidence is insufficient to justify the verdict as to the issue of damages and that the verdict as to the issue of damages is contrary to law. The record is devoid of evidence as to the value of the fire truck before and after the collision; plaintiff introduced only the repair bill to show the "dollars and cents" damage to its fire truck.

Damages are not to be presumed, and the burden is on a conplainant to show such facts as will provide a basis for their assessment, according to a definite and legal rule. Lieb v. Mayer, 244 N.C. 613, 94 S.E.2d 658 (1956). Plaintiff argues that although the measure of damages for a tortious injury to personal property is the difference in the market value of the property immediately before and immediately after the injury, this difference may be established by showing the reasonable cost of necessary repairs to restore the property to its previous condition. In support of its argument, plaintiff cites Farrall v. Universal Garage Company, 179 N.C. 389, 102 S.E. 617 (1920); United States Fidelity & Guaranty Company v. P. & F. Motor Express, 220 N.C. 721, 18 S.E.2d 116 (1942), and Simrel v. Meeler, 238 N.C. 668, 78 S.E.2d 766 (1953).

We find it unnecessary to agree or disagree with plaintiff's argument. G.S. § 1A-1, Rule 59(a)(7) authorizes a trial judge to grant a new trial on all or part of the issues on the ground of insufficiency of the evidence to justify the verdict. In Glen Forest Corp. v. Bensch, 9 N.C.App. 587, 176 S.E.2d 851 (1970), this court held that a motion to set aside the verdict and for a new trial pursuant to G.S. § 1A-1, Rule 59(a)(5) and (7), is addressed to the sound discretion of the trial judge, whose ruling, in the absence of abuse of discretion, is not reviewable on appeal. Plaintiff does not argue that there was an abuse of discretion in the instant case and the record reveals no abuse. We hold that the trial court properly exercised its discretion in granting a new trial on the issue of damages on the ground that the evidence was insufficient to justify the verdict as to the issue of damages.

For the reasons stated, the judgment n. o. v. in favor of defendant is reversed; the portion of the judgment granting defendant a new trial on the issue of damages is affirmed.

Partial new trial.

MALLARD, C. J., and CAMPBELL, J., concur.