Harris v. Bridges

264 S.E.2d 804 (1980)

Pinkney Leck HARRIS
v.
James Daniel BRIDGES, B & P Motor Lines, Inc., and Michael Edward Vaughn.

No. 7927SC695.

Court of Appeals of North Carolina.

April 15, 1980.

Frank Patton Cooke by James R. Carpenter, Gastonia, for plaintiff-appellant.

Hollowell, Stott & Hollowell by Grady B. Stott, Gastonia, for defendant-appellant Vaughn.

Hedrick, Parham, Helms, Kellam, Feerick & Eatman by Hatcher B. Kincheloe, Charlotte, for defendants-appellees Bridges and B & P Motor Lines, Inc.

ARNOLD, Judge.

Defendant Vaughn's Appeal

Defendant contends that because plaintiff was contributorily negligent as a matter of law, defendant was entitled to a directed verdict on the issues of negligence. This argument is without merit. The evidence reveals that plaintiff saw defendant drink one beer prior to the time they set out in the car; that in plaintiff's opinion defendant was not under the influence of alcohol; and that plaintiff recalls the car was "not going very fast" just before the accident. This evidence does not set out circumstances which would have required plaintiff to protest defendant's continuing to drive in order to avoid being contributorily negligent. "[A] plaintiff can not be guilty of contributory negligence unless he acts or fails to act with knowledge ..., either actual or constructive, of the danger of injury which his conduct involves." Chaffin v. Brame, 233 N.C. 377, 380, 64 S.E.2d 276, 279 (1951). If defendant Vaughn was in fact driving under the influence, there is no evidence to impute knowledge of that fact to the plaintiff.

Defendant argues further that he was entitled to have the verdict on the first issue set aside. He contends that the court erred by giving a peremptory instruction on defendant Bridges' negligence when in fact there was conflicting evidence. An examination of the jury charge, however, reveals that defendant has taken the portion to which he objects out of context. Defendant Bridges, his co-driver, and his stepfather all testified that the trailer was completely equipped with the required lights, and that they were in working order and lighted at the time of the accident. Dennis Dalton, a passenger in Vaughn's car, testified that he saw the trailer as they approached it, but did not see any lights on it. The trial court charged the jury that by statute the trailer was required to be equipped with a particular number of lights, and that if they believed the witnesses they would find that the trailer was properly equipped with lights. It is this portion of the charge to which defendant Vaughn objects. The evidence is uncontradicted, however, that the trailer was so equipped. And the court went on to charge the jury that the issue of negligence they must determine was whether the lights were lighted at the time of the collision. This is a correct statement of the law. Defendant's assignment of error is without merit.

We find no error in the court's decision not to submit contributory negligence to the jury. As we have indicated above, no evidence was presented which would have supported such a charge. On his appeal, defendant Vaughn cannot prevail.

Plaintiff's Appeal

Plaintiff contends that he was prejudiced by the court's refusal to give additional requested instructions on the negligence of defendant Bridges. We find no merit in this contention. There is no evidence that defendant Bridges failed to keep control of his vehicle or maintain a reasonable speed, in that he either could have or should have accelerated when he saw Vaughn's car three-tenths of a mile away. His uncontradicted testimony is that, driving a tractor-trailer, he could not accelerate in a turn, and that when he saw that Vaughn was going to hit him he did try to accelerate to get out of the way. Nor is there evidence that would support an instruction on either G.S. 20-154 or G.S. 20-148.

Plaintiff assigns error to the denial of his motion for mistrial, arguing that he was prejudiced by the fact that all parties argued the issue of contributory negligence to the jury but that issue was not submitted. Had the trial court not set aside the verdict on the third issue, the possibility of prejudice to plaintiff might exist, since the fact that the jury found defendant Vaughn negligent but awarded plaintiff no damages supports an inference that the jury considered contributory negligence in assessing damages. However, in light of the fact that the answer to the third issue was set aside by the court and scheduled for a new trial, we can see no prejudice to the plaintiff.

Plaintiff argues that the court erred in setting aside the verdict on the second issue, the issue of defendant Vaughn's negligence. While we agree with plaintiff that there was plenary evidence to support this verdict, we find no error in the court's decision that in setting aside the verdict in the third issue, it should set aside the verdict in the second issue as well.

The verdict on the third issue was contrary to law, and was properly set aside. See Robertson v. Stanley, 285 N.C. 561, 206 S.E.2d 190 (1974) (if the plaintiff has been injured by defendant's negligence, and did not contribute to his injury by his own negligence, he is entitled to a reasonable satisfaction for his injuries). In setting aside the verdict on the second issue as well, the court acted within its discretion, and reached a result consistent with the decision in Robertson v. Stanley, id. There the court indicated that an inconsistent verdict on damages should result in a complete new trial. "In our opinion, the issues of negligence, contributory negligence, and damages are so inextricably interwoven that a new trial on all issues is necessary." Id. at 569, 206 S.E.2d 196.

We have considered plaintiff's further assignments of error, and we find no prejudice to him arising from them.

Defendants Bridges' and B & P Motor Lines, Inc.' Cross-Assignment of Error

These defendants present three arguments as cross-assignments of error. Since we have found no error in the court's decision to accept the verdict on the first issue, which found these defendants not negligent, we need not address these arguments. The purpose of cross-assignments of error is to set out errors which may have deprived the appellee of an alternate basis for supporting the judgment in his favor. Rule 10(d), Rules of Appellate Procedure, and Comment thereto.

We find no error in the trial court proceedings, and the judgment of that court is

Affirmed.

PARKER and WEBB, JJ., concur.