Blankley v. Martin

398 S.E.2d 606, 101 N.C. App. 175, 1990 N.C. App. LEXIS 1220
CourtCourt of Appeals of North Carolina
DecidedDecember 18, 1990
DocketNo. 9023SC387
StatusPublished
Cited by3 cases

This text of 398 S.E.2d 606 (Blankley v. Martin) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blankley v. Martin, 398 S.E.2d 606, 101 N.C. App. 175, 1990 N.C. App. LEXIS 1220 (N.C. Ct. App. 1990).

Opinion

GREENE, Judge.

The plaintiff appeals from a judgment filed on 8 December 1989 based upon a jury verdict finding the plaintiff to have been contributorially negligent in the events leading up to a car wreck between the plaintiff and the defendant.

The plaintiff filed this negligence action against the defendant on 25 February 1988. The defendant admitted his own negligence but argued that the plaintiff was contributorially negligent. This case came on for trial before a jury on 27 November 1989. The plaintiff presented the following evidence: On the morning of 7 December 1987, the defendant was driving south on U.S. 21 Business in Elkin, North Carolina. The plaintiff was also driving south on U.S. 21 Business, driving a delivery van to make his usual deliveries for his employer, White Swan Uniform Rental. Both the plaintiff and the defendant had entered U.S. 21 Business from another adjoining highway. The speed limit on U.S. 21 Business was 45 miles per hour. At the time of the accident, the plaintiff was headed to a business known as the Video Connection to make a delivery. To get to the Video Connection, the plaintiff had to make a left turn off of U.S. 21 Business. The plaintiff began to apply his brakes at or just after passing an intersection located approximately one-quarter to one-third of a mile before the necessary turning point thereby making a safe, slow stop. This turning point was located at the bottom of a hill on U.S. 21 Business. The plaintiff testified that he gave a left turn signal for approximately 150 feet before the necessary turning point, and that his turn signal lights were very large and in working order. After coming to a complete stop on the flat part at the bottom of the hill, the plaintiff waited for oncoming, northbound traffic to pass before making the left [177]*177turn. He had waited for three or four seconds at the bottom of the hill when from the • rear he heard the sound of screeching tires. After the defendant’s car skidded for approximately sixty feet, it collided with the back of the plaintiff’s stopped van causing the plaintiff to suffer head, neck, and back injuries. According to the plaintiff, the defendant drove negligently in that during clear driving conditions the defendant drove over the speed limit, failed to keep a proper lookout, failed to see the plaintiff's stopped van in front of him, and subsequently ran into the plaintiff’s van.

The defendant’s evidence shows that at some point before the collision, the defendant had been driving in front of the plaintiff. The defendant testified that as he was traveling south on U.S. 21 Business at 45 miles per hour, the plaintiff pulled out and passed him at a speed in excess of 45 miles per hour. The plaintiff testified that he passed the defendant on a section of the highway which was temporarily a two-lane road going south, and that he passed the defendant at a speed in excess of 30 miles per hour. According to the defendant’s estimate, the plaintiff passed the defendant approximately 250 yards before the intersection on U.S. 21 Business, the same intersection at or just after which the plaintiff first began applying his brakes. Not long after the plaintiff had passed the defendant and reentered the southbound lane of the highway, the defendant passed the intersection, checking both to his left and right for approaching traffic. Soon after the defendant had passed by the intersection, the plaintiff suddenly stopped thereby giving the defendant an insufficient amount of time to stop safely. The defendant realized that the plaintiff had stopped when he was approximately seventy-five to ninety feet from the plaintiff’s stopped van. Though the defendant did not remember seeing a turn signal from the plaintiff’s van at any point between the intersection and the place of the accident, he did notice the plaintiff’s brake lights. He also observed the back end of the plaintiff’s van lift up when it stopped. The defendant applied his brakes and skidded into the rear of the plaintiff’s van.

At the end of the evidence, the defendant argued that only the issues of the plaintiff’s contributory negligence and damages should be submitted to the jury. The plaintiff argued that the issue of contributory negligence should not be submitted to the jury because the defendant did not produce evidence of the plaintiff’s alleged negligence. The trial court submitted both issues to the jury. The jury found that the plaintiff was contributorially [178]*178negligent and awarded no damages. The plaintiff made two post-trial motions which the trial court denied.

We note initially that the plaintiff has abandoned the three assignments of error supporting his three arguments on this appeal. “Each assignment of error shall . . . state plainly, concisely and without argumentation the legal basis upon which error is assigned.” N.C.R. App. P. 10(c)(1). Because the plaintiff’s assignments of error do not state the legal basis upon which error is assigned, they are deemed abandoned. However, pursuant to N.C.R. App. P. 2, we have chosen to address the merits of the plaintiff’s argument concerning the allegedly erroneous submission of the issue of contributory negligence to the jury. Because our resolution of this argument renders moot the plaintiff’s third argument, we refuse to address the third argument.

The issue is whether the trial court erred in submitting the issue of the plaintiff’s contributory negligence to the jury where the evidence showed that the plaintiff violated N.C.G.S. § 20-154 (1989).

The burden of proving the plaintiff’s contributory negligence rests with the defendant. Wentz v. Unifi, Inc., 89 N.C. App. 33, 38, 365 S.E.2d 198, 201, disc. rev. denied, 322 N.C. 610, 370 S.E.2d 257 (1988). The defendant “has the burden of proving by the greater weight, of the evidence that plaintiff’s negligence was one of the proximate causes of his injury or damages.” Clark v. Bodycombe, 289 N.C. 246, 253, 221 S.E.2d 506, 511 (1976). “[T]he defendant is entitled to have the issue submitted to the jury if all the evidence and reasonable inferences drawn therefrom and viewed in the light most favorable to defendant tend to establish or suggest contributory negligence.” Wentz, 89 N.C. App. at 38, 365 S.E.2d at 201. “ ‘If there is more than a scintilla of evidence, contributory negligence is for the jury.’ ” Tatum v. Tatum, 79 N.C. App. 605, 607, 339 S.E.2d 817, 818, modified and aff'd, 318 N.C. 407, 348 S.E.2d 813 (1986) (citation omitted).

From the record, it appears that the primary reason the trial court submitted the issue of contributory negligence to the jury was based upon the plaintiff’s own testimony suggesting that he had not complied with N.C.G.S. § 20-154. The statute provides as follows:

[179]*179(a) The driver of any vehicle upon a highway or public vehicular area before starting, stopping or turning from a direct line shall first see that such movement can be made in safety, . . . and whenever the operation of any other vehicle may be affected by such movement, shall give a signal as required in this, section, plainly visible to the driver of such other vehicle, of the intention to make such movement. . . .

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Cite This Page — Counsel Stack

Bluebook (online)
398 S.E.2d 606, 101 N.C. App. 175, 1990 N.C. App. LEXIS 1220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blankley-v-martin-ncctapp-1990.