Wade v. Grooms

246 S.E.2d 17 (1978)

37 N.C. App. 428

Benjamin F. WADE v. Carl Leslie GROOMS, Jr.

No. 7728SC777.

Court of Appeals of North Carolina.

August 1, 1978.

*19 Dennis J. Winner, Asheville, and Byrd, Byrd, Ervin & Blanton, by Robert B. Byrd, Morganton, for plaintiff.

Roberts, Cogburn & Williams, by Landon Roberts and James W. Williams, Asheville, for defendant.

BROCK, Chief Judge.

We deal first with defendant's cross-assignment of error to the denial of his motion for directed verdict. Defendant contends that plaintiff's evidence, taken in the light most favorable to him, showed that plaintiff was traveling at a high rate of speed, on a rural road with hills and curves; that plaintiff attempted to negotiate a curve at a high rate of speed while his vehicle was approximately 50% across the center line at a place where he had no view of on-coming traffic. Thus, argues defendant, plaintiff's evidence shows contributory negligence as a matter of law. We disagree.

The standard of negligence by which plaintiff's conduct in this case is to be measured is that of a reasonably prudent man engaged in the discharge of official duties of a like nature under like circumstances. Goddard v. Williams, 251 N.C. 128, 110 S.E.2d 820 (1959); Collins v. Christenberry, 6 N.C.App. 504, 170 S.E.2d 515 (1969). Defendant points out that plaintiff's testimony indicates a violation of G.S. 20-146, pertaining to driving on the right side of the highway, and that such violation is negligence per se. However, the principle urged by defendant is not applicable to law enforcement officers, who are not to be deemed negligent merely for failure to observe the rules of the road while engaged in the pursuit of lawbreakers. Goddard v. Williams, supra; Collins v. Christenberry, supra.

We are not prepared to say that plaintiff's testimony established contributory negligence as a matter of law. Plaintiff was under a duty to attempt to apprehend the defendant; in performance of that duty plaintiff was forced to engage in a high-speed chase involving danger of an accident. Consequently, it was for the jury to decide whether plaintiff exercised such care as a prudent man would exercise in the discharge of official duties of a like nature under like circumstances. The trial court properly denied defendant's motion for directed verdict. Defendant's cross-assignment of error is overruled.

Plaintiff first argues his assignments of error numbers 1 and 3, contending that there was no evidence to support submission to the jury of the issue of plaintiff's contributory negligence. These assignments of error require little discussion. Plaintiff's own evidence was sufficient to raise a question of fact as to whether his conduct satisfied the applicable standard of care as set out supra.

For his assignment of error number 2, plaintiff contends that the trial court erred in its charge on the issue of contributory negligence. This assignment of error has merit.

We first note that at one point in his charge, the court instructed the jury properly with regard to the standard of care applicable to a law enforcement officer engaged *20 in the discharge of his official duties. However, the court then proceeded to instruct the jury with respect to violation of various rules of the road, to wit: failure to keep a reasonable lookout, failure to maintain proper control of vehicle, reckless driving, driving at a speed greater than reasonable and prudent under existing conditions, failure to pass on-coming vehicle on the right, and driving over the center line. The jury was told, in each instance, that violation of these rules constituted negligence, and in the final mandate, the jury was instructed that if they found that plaintiff was negligent in failing to follow one or more of these rules of the road, they would find plaintiff contributorily negligent. These instructions were clearly erroneous, since, as noted supra, a law enforcement officer is not to be deemed negligent merely for failure to observe rules of the road.

We cannot hold this error harmless, for although the jury had been instructed correctly at one point as to the standard of care applicable to the plaintiff, the very real possibility exists that the jury found plaintiff contributorily negligent solely by virtue of his failure to observe one or more of the rules of the road. See Kinney v. Goley, 4 N.C.App. 325, 167 S.E.2d 97 (1969). Plaintiff was entitled to instructions requiring the jury should they find from the evidence that one or more of the rules of the road were violated, to consider such violation(s) along with all other facts and circumstances, and decide whether plaintiff breached the duty of care applicable to a law enforcement officer engaged in the discharge of his official duties.

For errors in the judge's charge to the jury, plaintiff is entitled to a

New trial.

CLARK and WEBB, JJ., concur.