Eason v. Barber

365 S.E.2d 672 (1988)

Carroll Dean EASON and wife, Chong Ae Eason
v.
Rocky Lee BARBER and Terry Lee Barber.

No. 8727SC727.

Court of Appeals of North Carolina.

March 15, 1988.

Harris, Bumgardner & Carpenter by Reid C. James and Nancy C. Northcott, Gastonia, for plaintiffs-appellants.

Stott, Hollowell, Palmer & Windham by Douglas P. Arthurs, Gastonia, for defendants-appellees.

WELLS, Judge.

Under their first assignment of error plaintiffs argue that denial of their motion for judgment notwithstanding the verdict constituted reversible error in that plaintiffs were entitled to judgment as a matter of law. Determination of whether to grant a judgment notwithstanding the verdict is made by viewing the evidence, and all reasonable inferences therefrom, in the light most favorable to the nonmovant. DeHart v. R/S Financial Corp., 78 N.C.App. 93, 337 S.E.2d 94 (1985), cert. denied, 316 N.C. 376, 342 S.E.2d 893 (1986). In the present case, plaintiffs claim that under applicable law, the evidence compels a finding in their favor.

Plaintiffs rely on Petree v. Johnson, 2 N.C.App. 336, 163 S.E.2d 87 (1968) in which this Court held that a driver attempting to make a left-hand turn is bound to exercise reasonable care in determining whether the turn can be made safely. Plaintiff's claim that defendant Rocky Barber's failure to realize that Eason's speed coupled with the two vehicles' proximity at the intersection breached his duty of care under Petree, supra, thereby rendering defendant liable. While true, the law likewise imposes a correlative duty upon oncoming drivers. It is expected:

... in the absence of notice to the contrary that the oncoming motorist will maintain a proper lookout, drive at a lawful speed, and otherwise exercise due care to avoid collision with the turning vehicle.

Cooley v. Baker, 231 N.C. 533, 58 S.E.2d 115 (1950).

In the present case, the jury, having been fully apprised of the applicable law, was entitled to construe the evidence of Eason's excessive speed (35-50 m.p.h. in a 20 m.p.h. zone) as a breach of his duty to keep a proper lookout, drive at a lawful speed, and exercise due care to avoid collision with defendant Barber's car, thereby finding plaintiff contributorily negligent. Plaintiffs' first assignment of error is overruled.

By their second assignment of error, plaintiffs argue that the trial court committed reversible error in denying plaintiffs' motion for a new trial because the verdict was against the greater weight of the evidence and because the trial court's instructions to the jury regarding contributory negligence were not supported by the evidence.

Under N.C.Gen.Stat. § 1A-1, Rule 59, a party may obtain a new trial either for errors of law committed during trial or for a verdict not sufficiently supported by the evidence. Britt v. Allen, 291 N.C. 630, 231 S.E.2d 607 (1977). Where errors of law were committed, such as charging the jury on an issue not supported by the evidence, the trial court is required to grant a new trial. Jacobs v. Locklear, 310 N.C. 735, 314 S.E.2d 544 (1984).

Plaintiffs argue that the verdict went against the greater weight of the evidence because defendant, giving no indication that he intended to turn left, suddenly swerved out in front of plaintiff Eason approximately 15 feet from his motorcycle. Because plaintiff was entitled to assume that the Barber vehicle would wait until plaintiff had passed to make the turn safely, Brown v. Brown, 38 N.C.App. 607, 248 S.E.2d 397 (1978), plaintiff argues that the sole responsibility for the collision rests with defendant. This argument, however, fails to refute or nullify the evidence of plaintiff's own negligence as indicated by the testimony relating to plaintiff's excessive speed, failure to keep a proper lookout, and failure to use due care to avoid the collision. The verdict, therefore, cannot be said to be against the greater weight of the evidence. Plaintiffs' second assignment of error is overruled.

Under their fourth assignment of error, plaintiffs complain that defendants' witnesses who testified as to plaintiff's excessive speed were not competent to do so. We disagree.

N.C.Gen.Stat. § 8C-1, Rule 701 of the Rules of Evidence allows for the admission of lay opinion if it is "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue." In North Carolina the general rule for admission of opinion testimony on speed is that "... a person of ordinary intelligence and experience is competent to state his opinion as to the speed of a vehicle when he has had a reasonable opportunity to observe the vehicle and judge its speed." Insurance Co. v. Chantos, 298 N.C. 246, 258 S.E.2d 334 (1979).

In the present case, plaintiffs complain that defendants' witnesses were either too inexperienced or lacked the requisite opportunity to observe plaintiff's vehicle to have formulated a "valid" opinion. We believe otherwise.

Plaintiffs complain primarily that each of defendants' three witnesses lacked the necessary driving experience to formulate a reliable opinion on vehicular speed. Plaintiffs point out that one of the witnesses, Michael Lamberth, who was a passenger in defendant's car at the time of the collision and had testified that plaintiff appeared to be travelling 35 m.p.h., was only 17 years old and had had only nine months of driving experience at the time. Additionally, plaintiffs complain that James Hart, II, a witness who had observed plaintiff's approach from a parking lot adjacent to the intersection and who testified that plaintiff appeared to be travelling 40-50 m.p.h., was only 18 years old and had been driving for only 14 months.

The foregoing accounts of the witnesses' youth and driving experience fail to persuade us of any incompetency in their testimony. Under Insurance Co. v. Chantos, supra and Rule 701, it is sufficient only that the witness be a person of ordinary intelligence and have had an opportunity to observe the incident. There is no indication in the present Record that defendants' witnesses lacked either ordinary intelligence or a reasonable opportunity to observe the incident. We therefore find that witnesses Lamberth and Hart were competent to testify on the speed of plaintiff's motorcycle as it approached the intersection.

Finally, plaintiffs contend that defendant Barber's observation of plaintiff's approach, once at a 250 foot distance and again at a 150 foot distance, lacked the continuity required to provide Barber with a reliable perception of the plaintiff's speed. We disagree. It is not necessary for a witness to observe the action described continuously, Cockrell v. Transport Co., 295 N.C. 444, 245 S.E.2d 497 (1978); Loomis v. Torrence, 259 N.C. 381, 130 S.E.2d 540 (1963); only that the witness have perceived the incident sufficiently to have gained a rational basis on which to formulate an opinion. We believe that defendant Barber had ample opportunity to observe plaintiff's vehicle approach the intersection such that his testimony on plaintiff's speed was competent and admissible. Plaintiffs' fourth assignment of error is overruled.

No error.

ARNOLD and SMITH, JJ., concur.