Kummer v. Lowry

598 S.E.2d 223, 165 N.C. App. 261, 2004 N.C. App. LEXIS 1146
CourtCourt of Appeals of North Carolina
DecidedJuly 6, 2004
DocketCOA03-1079
StatusPublished
Cited by5 cases

This text of 598 S.E.2d 223 (Kummer v. Lowry) 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
Kummer v. Lowry, 598 S.E.2d 223, 165 N.C. App. 261, 2004 N.C. App. LEXIS 1146 (N.C. Ct. App. 2004).

Opinion

TYSON, Judge.

Beverly A. Kummer (“plaintiff”) appeals from a judgment entered after a jury’s verdict found Anthony Lowry, Jr., (“Lowry”) and Anthony Lowry (collectively, “defendants”) negligent, plaintiff con-tributorily negligent, and failed to award damages for injuries she sustained in a car accident with defendants. We affirm.

I. Background

On 20 June 2000, plaintiff was driving her automobile west on Carowinds Boulevard in Charlotte, North Carolina. As plaintiffs automobile entered the intersection of Carowinds Boulevard and Catawba Trace Drive, the traffic light at the intersection emitted green for plaintiff’s lane of traffic. Lowry entered the intersection proceeding south on Catawba Trace Drive in violation of the red light in his lane of travel.' Plaintiff’s automobile “t-boned” Lowry’s automobile. The front of plaintiff’s automobile struck the left rear quarter panel of Lowry’s automobile.

Plaintiff brought suit against defendants and alleged that Lowry was negligent in causing the accident as he: (1) failed to maintain and keep a reasonable and careful lookout; (2) failed to keep his vehicle under reasonable and proper control; (3) operated his vehicle upon a public road heedlessly and carelessly; and (4) entered an intersection at a time when the traffic light emitted red for traffic in the direction in which he was traveling.

Defendants answered, denied negligence, and alleged that plaintiff was contributorily negligent by: (1) failing to keep a proper lookout; (2) failing to reduce the speed of her vehicle to avoid a collision; and (3) acting carelessly and negligently.

Weather conditions on the day of the collision were clear and dry with no obstructions or impediments to plaintiff’s view. Plaintiff presented evidence that showed the speed limit on Carowinds Boulevard was 55 miles-per-hour and that at the time of the accident she was traveling between 45 and 55 miles-per-hour. Plaintiff testified she did not see or notice Lowry’s vehicle or any other vehicle coming from the direction of Catawba Trace Drive. Plaintiff observed a car to *263 her right traveling in the same direction. As plaintiff entered the intersection, she focused on the road directly in front of her and did not look to her left or right. Plaintiff stated she did not see Lowry’s vehicle until it was directly in front of her and did not have time to brake or take any other action to prevent the collision. Defendants did not put on any evidence.

Plaintiff moved for a directed verdict on the issue of contributory negligence, which the trial court denied. The jury found: (1) defendants to be negligent; (2) plaintiffs negligence contributed to her injuries; and (3) denied plaintiff recovery. Plaintiffs motion for judgment notwithstanding the verdict and new trial was denied. Plaintiff appeals solely from the order denying her motion for a new trial and does not appeal from the judgment filed 17 March 2003.

II. Issues

The sole issue is whether the trial court erred in denying plaintiffs motion for a new trial because there was insufficient evidence to submit the issue of contributory negligence to the jury.

III. Contributory Negligence

This Court applies an abuse of discretion standard of review when reviewing the denial of a motion for new trial. Garrison v. Garrison, 87 N.C. App. 591, 594, 361 S.E.2d 921, 923 (1987). A trial court’s discretionary decision to deny or grant a new trial may be reversed on appeal “only when the record affirmatively demonstrates a manifest abuse of discretion.” Id. This Court must determine whether the verdict represents an injustice and is against the greater weight of the evidence. See In re Will of Buck, 350 N.C. 621, 516 S.E.2d 858 (1999). Because “the trial court has directly observed the evidence as it was presented and the attendant circumstances, as well as the demeanor and characteristics of the witnesses',” a trial court’s ruling on a motion for new trial is given great deference. Id. at 628, 516 S.E.2d at 863.

In determining the sufficiency of the evidence to justify the submission of an issue of contributory negligence to the jury, the court “must consider the evidence in the light most favorable to the defendant and disregard that which is favorable to the plaintiff.” See Prevette v. Wilkes Gen. Hosp., Inc., 37 N.C. App. 425, 427, 246 S.E.2d 91, 92 (1978). “ ‘If different inferences may be drawn from the evidence on the issue of contributory negligence, some favorable to the plaintiff and others to the defendant, it is a case for the jury to deter *264 mine.’ ” Id. (quoting Bell v. Maxwell, 246 N.C. 257, 261-62, 98 S.E.2d 33, 36 (1957)).

Plaintiff argues that because a green light was emitting for her direction of traffic,, she had the right to assume that any motorist approaching an intersection would abide by all traffic signals and was not contributorily negligent. Our Supreme Court, however, has held that even though a driver possesses a green light, “the duty rests upon [the driver] to maintain a reasonable and proper lookout for other vehicles in or approaching the intersection.” Beatty v. Bowden, 257 N.C. 736, 739, 127 S.E.2d 504, 506 (1962) (citing Cox v. Freight Lines, 236 N.C. 72, 72 S.E.2d 25 (1952)).

In Bass v. Lee, our Supreme Court elaborated on a motorist’s duties:.

The duty of a driver at a street intersection to maintain a lookout and to exercise reasonable care under the circumstances is not relieved by the presence of electrically controlled traffic signals, which are intended to facilitate traffic and to render crossing less dangerous. He cannot go forward blindly even in reliance on traffic signals .... A green traffic light permits travel to proceed and one who has a favorable light is relieved of some of the care which otherwise is placed on drivers at intersections, since the danger under such circumstances is less than if there were no signals. However, a green or “go” light or signal is not an absolute guarantee of a right to cross the intersection solely in reliance thereon without the necessity of making any observation and without any regard to traffic conditions at, or other persons or vehicles within, the intersection. A green or “go” signal is not a command to go, but a qualified permission to proceed lawfully and carefully in the direction indicated. In other words, not withstanding a favorable light, the fundamental obligation of using due and reasonable care applies.

255 N.C. 73, 78-79, 120 S.E.2d 570, 573 (1961) (internal citations omitted).

In Currin v. Williams,

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Cite This Page — Counsel Stack

Bluebook (online)
598 S.E.2d 223, 165 N.C. App. 261, 2004 N.C. App. LEXIS 1146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kummer-v-lowry-ncctapp-2004.