Auman v. Easter

244 S.E.2d 728 (1978)

Sylvia Dianne Williams AUMAN v. Kenzie Parks EASTER and Joseph Frazier Howell.

No. 7719SC497.

Court of Appeals of North Carolina.

June 6, 1978.

*730 Ottway Burton, Asheboro, for plaintiff-appellant.

Brinkley, Walser, McGirt & Miller, by Walter F. Brinkley, Lexington, for defendant-appellee, Kenzie Parks Easter.

Smith, Moore, Smith, Schell & Hunter, by Stephen Millikin, Greensboro, for defendant-appellee, Joseph Frazier Howell.

VAUGHN, Judge.

Plaintiff presents several assignments of error pertaining to her case against defendant Easter, contending that the court erred in directing a verdict in his favor. The directed verdict was appropriate only if the evidence, considered in the light most favorable to the plaintiff, would not justify a verdict in her favor. Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297 (1971). Plaintiff was not allowed to testify that in her opinion defendant Easter approached the intersection at 65 m.p.h. although she alleged that he was negligent in driving at an excessive speed. Plaintiff should have been allowed to state her opinion. Miller v. Kennedy, 22 N.C.App. 163, 205 S.E.2d 741 (1974), cert. den., 285 N.C. 661, 207 S.E.2d 755; Herring v. Scott, 21 N.C.App. 78, 203 S.E.2d 341 (1974). That she had very little time to observe the oncoming car and form her opinion affects only the weight of her testimony, not its admissibility. Nevertheless, the plaintiff has not shown prejudicial error. Even had her evidence concerning Easter's speed been admitted, it did not show actionable negligence on his part. In Hout v. Harvell, 270 N.C. 274, 154 S.E.2d 41 (1967), the Court held on similar facts that where there is no fact or circumstance alleged which would have given the oncoming driver timely notice that the driver of the car in which plaintiff was a passenger intended to make an unsafe turn in front of him, then the oncoming driver's speed, even if negligent, is not shown to have been a proximate cause of plaintiff's injuries. There is no evidence in this case from which a jury could have found that Howell began his turn at a time so as to make Easter's speed a proximate cause of the accident. Plaintiff testified that when she first saw the Easter vehicle coming toward her, the Easter vehicle was about one hundred and sixty-five feet away and traveling on a major highway. She also testified that to the best of her recollection, she saw the headlights before Howell began to make his turn. Easter testified that he first saw Howell when he was 300 feet away and that Howell appeared to be moving slowly into the intersection. When Easter was about 50 feet from the intersection, Howell suddenly pulled into his lane of traffic. Where the intervening negligent act was not such that it ought to have been foreseen by Easter, that act properly insulated him from liability. But for Howell's intervention, the speed of Easter's vehicle, even if excessive, would have resulted in no injury to the plaintiff. Easter's negligence, if any, was insulated by the negligence of Howell. See Hudson v. Petroleum Transit Co., 250 N.C. 435, 108 S.E.2d 900 (1959); Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808 (1940).

Another assignment of error relates to the amendment of defendant Howell's answer so as to conform to the evidence. G.S. 1A-1, Rule 15(b). The trial judge is allowed broad discretion in ruling on such motions. Markham v. Johnson, 15 N.C.App. 139, 189 S.E.2d 588 (1972), cert. den., 281 N.C. 758, 191 S.E.2d 356. Leave to amend should be freely given except where the party objecting can show that he would be materially prejudiced. Vernon v. Crist, 291 N.C. 646, 231 S.E.2d 591 (1977). In this case defendant Howell was allowed to add an allegation concerning plaintiff's contributory negligence in riding in the car with an intoxicated driver. There was no error in allowing the amendment. Plaintiff could not have been surprised at trial. Defendant Easter had pleaded the same defense, and proof had been properly admitted at trial pertaining to the defense.

Another assignment of error relates to the court's instructions on the issue of damages. Plaintiff contends that the court did not clearly instruct the jury that it should not reduce the amount of her recovery simply because she had been accused of contributory negligence in riding with a *731 driver who had been drinking. The court correctly instructed the jury that the amount of damages should be fixed without regard to punishing either party and without consideration of sympathy for either party. "When the court has sufficiently instructed the jury, if the instructions are not as full as a party desires, he should submit a request for special instructions." Broadnax v. Deloatch, 20 N.C.App. 430, 201 S.E.2d 525 (1974), cert. den., 285 N.C. 85, 203 S.E.2d 57. The record does not show that any request was made.

We have considered plaintiff's other assignments of error. No prejudicial error has been shown.

No error.

PARKER and WEBB, JJ., concur.