Riggan v. North Carolina State Highway Patrol , 61 N.C. App. 69 ( 1983 )

300 S.E.2d 252 (1983) 61 N.C. App. 69

Tonia Kay RIGGAN, Administratrix of the Estate of Lewis G. Riggan
v.
NORTH CAROLINA STATE HIGHWAY PATROL, A DIVISION OF the NORTH CAROLINA DEPARTMENT OF CRIME CONTROL AND PUBLIC SAFETY.

No. 8210IC354.

Court of Appeals of North Carolina.

March 1, 1983.

Morgan, Bryan, Jones & Johnson by Robert C. Bryan, Lillington, and Stewart & Hayes by D.K. Stewart, Dunn, for plaintiff-appellee.

Atty. Gen., Rufus L. Edmisten by Asst. Atty. Gen., Sandra M. King, Raleigh, for defendant-appellant.

HEDRICK, Judge.

Defendant assigns error to the finding and conclusion that Trooper Lovette was negligent and that such negligence was a proximate cause of Lewis G. Riggan's death. The exceptions upon which this assignment of error is based raise the question of whether the facts found by the Commission are supported by competent evidence and whether the findings which were supported by competent evidence support the conclusions drawn therefrom. We hold the Commission found critical facts which are not supported by the evidence, failed to make findings determinative of some of the issues raised by the evidence, and drew conclusions of law which are not supported by the findings of fact.

The majority of the Commission found as a fact (Finding of Fact No. 3) that Mrs. Hill did not see the motorcycle which was approaching her from the west as she prepared to turn from the north side of Highway 211 into rural paved road # 1003. The only evidence in the record with respect to what Mrs. Hill saw is in her own testimony. On direct examination she testified: "... As I approached I stopped, I give a signal to turn. I saw a patrol car coming down the highway there around that curve at the colored church and there was a motorcycle in front of me, and a patrol light [sic] did have its blue light on...." On cross examination she testified: "... I was approaching the intersection when I saw the motorcycle and patrol car coming in the opposite direction. I saw the blue light—that was what really got my attention was the blue light going on the patrol car. I just saw the motorcycle coming down the road in front of me...." This obvious mistake upon the part of the Commission is significant because it demonstrates clearly that the Commission attached little or no importance to the fact that Mrs. Hill, although she saw both the motorcycle and the patrol car approaching her from the west, turned her automobile across the east bound lane (southern lane) directly in front of the approaching traffic.

The principal finding upon which the Commission based its conclusion as to negligence and proximate cause was that Trooper Lovette "did not himself apply brakes" when he came around the curve .25 miles from the intersection and regained sight of Riggan who was then applying brakes and slowing down. The only testimony with respect to this critical finding comes from Trooper Lovette. We quote extensively from the patrolman's testimony to demonstrate that the record does not support the finding relied upon by the Commission. On direct examination Trooper Lovette testified:

. . . . .

It was when—he was in the left lane and I was—come out of a curve. I saw him, started slowing and applying my brakes and a car turned from the westbound lane in front of us making a left-hand turn, at which time I slammed on brakes. I started sliding and as I was sliding the motorcycle went back to the right lane and as I got near the intersection he cut back in front of it. That's when I hit him. As to whether I slammed on my brakes at the time I saw the car heading the other way to turn, yes, sir and I locked the brakes. As to whether at any time I took my foot off the brakes after I hit him, I released it shortly and then put it back on. As to where my car was when I first started slamming on the brakes, I was in the right lane. My car went from the right over to the left out of the curve there. The impact took place in the left lane near the intersection. All four wheels of my car were on the pavement. Both wheels of the cycle were on the pavement.

As to how far I was from the intersection at the point of the impact, I would say from here to the window just before we get to the intersection, the best I can remember. As to what this distance is, maybe 20 foot, something like that. As to whether I saw a turn signal from the car heading toward me, no, sir. All I saw was lights and a car turning. I don't know if it had signals or not. As to whether I saw a turn signal on the motorcycle, no, I didn't see any. All I saw was taillights. The taillight and the brake light were on. As to when I last saw the car that turned left to cross the road, the best of my recollection after—when the car turned the road was completely full. It was in the left lane. The car was across the road. There is—no where to go, so I just slammed on brakes. As to whether the time I slammed on brakes is the last time I saw the car, that's what I'm getting to. I was approaching the intersection. The motorcycle had gone to the left and the best I can remember the car was clearing the east bound lane at that time and he cut back in front of them. When I first came around the curve, the motorcycle when I first saw it was in the left lane. As to whether it stayed in the left lane until the point of impact, it went from the left over to the right lane and then back to the left. (Emphasis added.)

....

On cross examination Trooper Lovette testified:

. . . . .

Skid marks from my car began in the right lane and they continued until I hit the motorcycle. I say that as I was approaching the intersection somewhere up around the curve the motorcycle went out of my sight. Just as I was coming out of the curve, he was again in my sight and at that time I saw those brake lights. As to whether the brake lights continued on until the collision, I wouldn't say for sure. They were on when I first saw—I don't remember if they stayed on or not. I had just come out of the curve when I saw the brake lights on the motorcycle and I saw it in the left lane. As to whether I applied my brakes I had applied them. I hadn't locked them. I had started slowing. As to whether I had seen any marks then, no, sir. I was in my right and proper lane. The motorcycle was in the left lane. As to whether it had a turn signal on, I don't know. I don't recall. I'm not saying it did or it didn't. I didn't see it. As to whether I know what speed I was doing at the time, no, sir. I don't know what speed the motorcycle was going. Both of us had slowed down. As to whether from the church I could see all the way beyond the intersection of 211 and 1003, after you come around the curve, yes, sir. As to whether as soon as you came out of the curve thereabout the church you could see all the way down, you could at day. You could see lights if there was any. I didn't see any cars at that time coming. The first time I saw the car was when it started turning. It had lights on when I saw it. I couldn't tell you how fast I was going. I came around the curve and saw the motorcycle in the left lane with his brake lights on, I had started slowing, let off the gas and applied the brakes but I weren't sliding then. That's when the car turned. I don't know where it came from or what. I was watching to see what he was going to do and slowing at the same time.

All of the sudden there was a car turning. As to whether I was looking to see if any cars were coming from any direction, I didn't see any until she had started turning. It's the first I'd seen of it. I was coming out of the curve when I saw her begin to turn. As to whether I know that it is 1325 feet to that church from where this intersection—I don't know. I wouldn't say whether it's any less than that. (Emphasis added.)

....

No construction of the evidence, in our opinion, supports the finding that Trooper Lovette did not apply his brakes. The only inference reasonably deducible from the evidence is that Trooper Lovette did apply his brakes immediately upon seeing that he and Riggan were approaching an intersection, and that Riggan was slowing the motorcycle. Thus, the conclusion that Lovette was negligent in failing to apply his brakes, and that such negligence was a proximate cause of Riggan's death, is not supported by the record.

Additionally, the Commission misinterpreted the evidence and misapplied its findings of fact to the law in arriving at its conclusion that the negligence of Trooper Lovette was a proximate cause of the collision and the resulting death of Riggan.

The majority of the Commission, in addition to finding facts not supported by the evidence, failed to find facts determinative of the issues raised by the evidence, and then misapplied the facts it did find to the law.

When confronted with a sudden emergency, a person is held to act as a person of ordinary care and prudence would have acted under similar circumstances. He is not held to make the wisest or best decision. 2 N.C. Index 3d, Automobiles and Other Vehicles § 72 (1976). In Schloss v. Hallman, 255 N.C. 686, 122 S.E.2d 513 (1961), a defendant lost control of his vehicle when another vehicle cut in front of him. The court held this was sufficient evidence to invoke the doctrine of sudden emergency and preclude the submission of the issue of negligence to the jury. Also, in Dixon v. Cox, 266 N.C. 637, 146 S.E.2d 673 (1966), the Court held there was insufficient evidence to submit to the jury the issue of negligence for failure to take evasive action where the defendant applied his brakes and veered to avoid an oncoming vehicle.

The evidence in the present case, and that portion of Finding of Fact No. 7 which is supported by the evidence, reveals a classic sudden emergency situation. The only inference reasonably deducible from the evidence is that Lovette locked his brakes when the Hill vehicle turned across Highway 211 directly in the path of the patrol car. Although the majority of the Commission found this to be a fact, it ignored its legal significance when it concluded that Trooper Lovette was negligent in "swerving" his automobile into the left lane of Highway 211 where it struck Riggan's motorcycle. There is no evidence in this record that Trooper Lovette in any way precipitated the sudden emergency which arose when the Hill vehicle blocked the southern lane of Highway 211. Officer Lovette was under no duty to anticipate negligence on the part of others driving upon the public highway. Privette v. Lewis, 255 N.C. 612, 122 S.E.2d 381 (1961). Lovette had a right to assume that Mrs. Hill would remain on the north side of Highway 211 until the very moment she turned into the south side of the highway directly in the path of the patrol car. Upon observing Mrs. Hill's automobile turning, the officer had a duty to exercise reasonable care to avoid a collision. This is precisely what the evidence and the findings disclose he did when he locked his brakes in the face of the sudden emergency. The evidence supports the Commission's finding that the patrolman lost control of the vehicle he was operating and struck Riggan's motorcycle, but it does not follow that he was negligent in losing control. The evidence and the findings disclose affirmatively and conclusively that Trooper Lovette exercised reasonable care under the circumstances.

We hold the Commission's finding and conclusion that Riggan's death was the proximate result of the negligence of the defendant is erroneous and must be reversed.

Because of our decision with respect to Assignment of Error No. 1, it is not necessary for us to discuss Assignment of Error No. 2 relating to the contributory negligence of plaintiff's intestate.

The Opinion and Award of the Industrial Commission filed 25 November 1981 is reversed and the cause is remanded to the Industrial Commission for the entry of an order dismissing plaintiff's claim.

Reversed and remanded.

WHICHARD and BRASWELL, JJ., concur.