Gwaltney v. Keaton , 29 N.C. App. 91 ( 1976 )

223 S.E.2d 506 (1976) 29 N.C. App. 91

Jacqueline W. GWALTNEY
v.
Margaret M. KEATON et al.

No. 7522SC906.

Court of Appeals of North Carolina.

April 7, 1976.

McElwee, Hall & McElwee by John E. Hall, North Wilkesboro, for plaintiff-appellee.

Mitchell, Teele & Blackwell by Hugh A. Blackwell, Valdese, for defendant-appellant.

Patrick, Harper & Dixon by Stephen M. Thomas, and West, Groome & Baumberger by Carroll D. Tuttle, Lenoir, for defendant-appellee-cross appellant.

ARNOLD, Judge.

DEFENDANT KEATON'S APPEAL

In response to a question concerning a blood alcohol test administered to defendant Triplett following the accident, Triplett testified that the results of the test were ".02". It is correctly contended by defendant Keaton that an appropriate foundation was not laid in order to properly admit this testimony into evidence. State v. Powell, 279 N.C. 608, 184 S.E.2d 243 (1971); State v. Caviness, 7 N.C.App. 541, 173 S.E.2d 12 (1970). However, we fail to see any prejudice to defendant Keaton by the admission of the results of the blood alcohol test since there was no evidence tending to establish any connection between Triplett's drinking and the cause of the accident.

We also fail to see prejudicial error in the trial court's directed verdict as to defendant Canter. Mrs. Keaton argues that under G.S. 20-71.1, the evidence of Canter's ownership of the motorcycle was sufficient to take the case to the jury, and she contends that it was error to direct a verdict for Canter. It is true that ownership of the vehicle would be sufficient to take the case to the jury under G.S. 20-71.1, but the uncontradicted evidence proved that plaintiff and Triplett were traveling to the beach on a social outing at the time of the accident. Where the evidence clearly establishes that the defendant was operating the vehicle on a purely personal mission the defendant is entitled, without request, to a peremptory instruction on the issue. Therefore, we hold that no prejudice has been shown, and that the error is harmless. See Belmany v. Overton, 270 N.C. 400, 154 S.E.2d 538 (1967).

Contributory negligence on the part of plaintiff was not submitted as an issue to the jury and defendant Keaton assigns error. She asserts that Miss Gwaltney was under a duty "to remonstrate with the driver when the circumstances are such that a man of ordinary prudence would remonstrate," and that a "guest passenger . . is required to exercise that degree of care for his own safety which a reasonably prudent man would employ under the same or similar circumstances." 1 N.C. Index 2d, Automobiles § 94, pp. 565-566.

While a guest passenger has the duty to exercise ordinary care for his own safety "what constitutes the exercise of ordinary care on the part of the guest depends on circumstances." Watters v. Parrish, 252 N.C. 787, 801, 115 S.E.2d 1, 11 (1960).

The question of the guest passenger's contributory negligence is an issue for the jury where conflicting inferences may be drawn from the circumstances. See Jackson v. Jackson, 4 N.C.App. 153, 166 S.E.2d 541 (1969). However, in the case at bar there was no evidence presented which raised conflicting inferences with respect to contributory negligence on the part of plaintiff.

Plaintiff testified that Triplett was operating the motorcycle at a lawful rate of speed and in a safe manner. The evidence indicated that she saw Triplett drink part of a beer before they left for the beach.

Although one witness indicated that he thought the motorcycle was going faster than the speed limit at the time of the accident there is no evidence that plaintiff was aware, or in the exercise of due care should have been aware, of Triplett's speeding, or that she had any opportunity to remonstrate with him. See Norfleet v. Hall, 204 N.C. 573, 169 S.E. 143 (1933).

There was no evidence that Triplett was under the influence of alcohol, or that he had consumed more than a small quantity of beer. The evidence discloses no circumstances where plaintiff knew, or had reason to know, that Triplett lacked the capacity to operate the motorcycle.

The evidence disclosed no circumstances where plaintiff, acting with the due care of a reasonably prudent person, had reason to be apprehensive as to the manner in which the motorcycle was being operated. [See Watters v. Parrish, supra.] There was no proof that a person of ordinary prudence, under the same or similar circumstances, would have remonstrated with the operator, and we hold that the trial court did not err in failing to submit the issue of contributory negligence on the part of the plaintiff to the jury.

We have examined the remainder of defendant's assignments of error, including those with respect to the judge's charge, and we find no error prejudicial to defendant Keaton.

DEFENDANT TRIPLETT'S APPEAL

Defendant's only contention is that the damages awarded him by the jury were inadequate. His position that the trial court should have added to the verdict or set it aside and award him a new trial is untenable. The court has no power to add to a verdict, and a motion for new trial on the grounds of inadequate damages is addressed to the discretion of the trial judge. No abuse of discretion has been shown, and no error exists.

As to defendant Keaton's appeal we find no error.

As to defendant Triplett's appeal we find no error.

BROCK, C. J., and PARKER, J., concur.