Bryant v. Winkler

192 S.E.2d 686 (1972)

16 N.C. App. 612

Hattie M. BRYANT v. Shirleen Wyke WINKLER.

No. 7225SC802.

Court of Appeals of North Carolina.

November 22, 1972.

*687 No brief filed for plaintiff.

Townsend & Todd by J. R. Todd, Jr., Lenoir, for defendant appellant.

GRAHAM, Judge.

Defendant assigns as error the denial of her request for jury instructions on the doctrine of sudden emergency. She says that she was confronted with a sudden emergency when the Bryant car stopped after having started from a stopped position as if it would proceed across the bridge.

We agree with the trial court that the doctrine of sudden emergency is not applicable here. The doctrine is not available to a party who contributes to the creation of the emergency in whole or in part. 6 Strong, N.C. Index 2d, Negligence, § 4, p. 9. Defendant's conduct in failing to bring her automobile under control as she proceeded onto a narrow bridge where two cars were meeting in front of her contributed to whatever emergency arose from the sudden stop by the Bryant vehicle.

Defendant's remaining assignment of error is to the court's instruction to the jury that they might assess damages for permanent injury. She contends that there was no evidence on which to base this instruction.

It is elementary that there can be no recovery for a permanent injury unless there is some evidence tending to establish one with reasonable certainty. Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753; Short v. Chapman, 261 N.C. 674, 136 S.E.2d 40; Johnson v. Brown, 11 N.C.App. 323, 181 S.E.2d 321, cert. denied, 279 N.C. 349, 182 S.E.2d 581. While the testimony of plaintiff's physician on the question of permanent injury was far from explicit, we are of the opinion that it was sufficient to permit the element of permanency to be considered by the jury. He testified as a medical expert and described the physical injuries suffered by plaintiff in the accident. His testimony, when considered in the light most favorable to plaintiff, would permit the jury to find that plaintiff suffered a whiplash injury that consisted of a disarrangement or separation and stretching of the inner fascia and ligaments about the spine. Fibrous or scar tissue can be expected to form in the healing process and remain during the remainder of plaintiff's *688 life. This scar tissue of fibrous tissue is abnormal and constitutes some disability.

No error.

VAUGHN and HEDRICK, JJ., concur.