Mintz v. Foster

242 S.E.2d 181 (1978)

35 N.C. App. 638

Kenneth Moore MINTZ v. Robert Lee FOSTER.

No. 7722SC250.

Court of Appeals of North Carolina.

March 21, 1978.

*183 White & Crumpler by Fred G. Crumpler, Jr., Harrell Powell, Jr., Michael J. Lewis and David R. Tanis, Winston Salem, for plaintiff-appellee.

Brinkley, Walser, McGirt & Miller by G. Thompson Miller and William E. Hall, Mochsville, for defendant-appellant.

ERWIN, Judge.

The defendant first assigns error to the trial court's failure to direct a verdict in his favor, contending there was no evidence of actionable negligence. This assignment is overruled. On a motion by a defendant for a directed verdict under Rule 50(a), plaintiff's evidence must be taken as true and must be considered in the light most favorable to him, giving plaintiff the benefit of every reasonable inference to be drawn from such evidence. Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1977). The record reflects ample evidence which would permit the jury to find defendant negligent.

Defendant next assigns as error the trial court's permitting plaintiff's witness, Officer Grooms, to illustrate his testimony with a diagram drawn by him on a blackboard without testimony that it fairly represented the scene of the accident. First, we note that the diagram was not offered into evidence for any purpose, nor has any reproduction of the diagram been furnished this Court. Further, defendant must show not only a lack of authentication, but also that the use of the diagram was prejudicial and without its erroneous use, a different result would have been likely. State v. Harris, 23 N.C.App. 77, 208 S.E.2d 266 (1974). This showing the defendant has failed to make.

In his third assignment, defendant contends that the trial court erred in refusing to submit to the jury an issue of contributory negligence. The record shows that defendant offered no evidence. Plaintiff's evidence showed no negligence on his part, but tended to show plaintiff was within the speed limit, in his own lane, and had to swerve to the right and brake in an effort to avoid defendant's truck, which had turned into plaintiff's lane. Defendant's contention that the doctrine of res ipsa loquitur may apply here, permitting the inference that plaintiff was contributorily negligent in that his motorcycle left the highway ". . . without showing any reason for doing so . . .", is totally groundless. This is not a situation where the nature of the occurrence itself would raise an inference of negligence. On the evidence here, it was not unusual for the motorcycle to have left the road.

The burden of proof on contributory negligence is clearly on defendant. Clary v. Board of Education, 286 N.C. 525, 212 S.E.2d 160 (1975). The issue should not be submitted to the jury unless there is evidence from which contributory negligence could reasonably be inferred. Atkins v. Moye, 277 N.C. 179, 176 S.E.2d 789 (1970). "Evidence which raises a mere conjecture is insufficient for the jury." Bruce v. Flying Service, 234 N.C. 79, 85, 66 S.E.2d 312, 316 (1951). The evidence was insufficient here to dictate an instruction on contributory negligence.

A fourth assignment of error relates to the following portion of the trial court's charge:

"I instruct you that the violation of a statute of a motor vehicle traffic law, enacted for public safety, is negligence within itself, unless the statute provides for the contrary. Where a public safety statute has been enacted, the statute determines what must be done or what must not be done. The statute describes a standard. And that standard is absolute. The reasonable person test does not apply. Proof of a violation of a statute is proof of negligence . . ." (emphasis added).

Plaintiff offered into evidence the court records pertaining to defendant's guilty plea to the charge that he ". . . did *184 unlawfully and willfully operate a motor vehicle on a public street or public highway, by failing to see before turning from a direct line that such movement could be made in safety." The implication of this instruction is that violation of a safety statute, which we here conclude must have been N.C. G.S. 20-154(a), constitutes negligence per se. However, 20-154(d) states: "A violation of this section shall not constitute negligence per se." As Judge Parker wrote for this Court in Kinney v. Goley, 4 N.C.App. 325, 332, 167 S.E.2d 97, 102 (1969):

"Since a violation of G.S. 20-154 is no longer to be considered negligence per se, the jury, if they find as a fact the statute was violated, must consider the violation along with all other facts and circumstances and decide whether, when so considered, the violator has breached his common law duty of exercising ordinary care."

We hold this instruction to be prejudicial error. In the Kinney case, supra, this Court further held that the trial court's having read G.S. 20-154 in its entirety to the jury did not cure the erroneous portion of the charge:

"Conflicting instructions to the jury upon a material point, the one correct and the other incorrect, must be held for prejudicial error, requiring a new trial, since it cannot be known which instruction was followed by the jury in arriving at a verdict. Barber v. Heeden, 265 N.C. 682, 144 S.E.2d 886." Kinney v. Goley, supra, at 332, 167 S.E.2d at 102.

While the trial court did add the qualifying statement, "unless the statute provides for the contrary," it did not add that this statute does "provide for the contrary," leaving the jury with the impression that violation of this statute did constitute negligence per se.

This error requires a new trial on all issues. While we therefore need not reach the defendant's last assignment, that the trial court abused its discretion in only setting aside the verdict as to damages, we note that the verdict was for $10,000, the amount of defendant's insurance coverage, when the hospital and doctors' bills far exceeded that amount. This strongly suggests a compromise verdict. See Robertson v. Stanley, 285 N.C. 561, 206 S.E.2d 190 (1974).

The judgment is reversed, and this cause is remanded for a new trial on all issues.

New trial.

MORRIS and VAUGHN, JJ., concur.