North Carolina Reports

SEAY v. SNYDER, COA06-237 (N.C.App. 1-2-2007) BELINDA SEAY,
Plaintiff-Appellant, v. NYCOLE SNYDER, Defendant-Appellee.
No. COA06-237. North Carolina Court of Appeals. Filed 2
January 2007.

Macon County No. 03 CVS 158

Appeal by Plaintiff from judgment and order entered 23
February 2005 by Judge James L. Baker, Jr. in Superior
Court, Macon County. Heard in the Court of Appeals 21
September 2006.

Melrose, Seago & Lay, P.A., by Mark R. Melrose, for
Plaintiff-Appellant.

Cogburn, Goosmann, Brazil & Rose, PA, by Patricia L. Arcuri
and Jennifer N. Foster, for Defendant-Appellee.

Russell & King, P.A., by J. William Russell, for Unnamed
Defendant-Appellee Alpha Property & Casualty Insurance Co.

McGEE, Judge.

Belinda Seay (Plaintiff) appeals from judgment entered on
jury verdicts finding that (1) Plaintiff was injured or
damaged by the negligence of Nycole Snyder (Defendant), (2)
Plaintiff contributed to her injury or damage by her own
negligence, and (3) Defendant did not have the last clear
chance to avoid Plaintiff’s injury or damage. The trial
court ordered that Plaintiff “shall have and recover nothing
of . . . Defendant.” We affirm.

Plaintiff testified at trial that she was a rural mail
carrier and that on 19 December 2002, she was delivering
mail on a narrow, gravel road. As Plaintiff approached a
blind curve in the road, she looked ahead and saw a vehicle
driving in the opposite direction. Plaintiff testified she
drove through the worst part of the curve and stopped so
the vehicle that was approaching her could pass. Plaintiff
testified that she pulled her vehicle as far to the right
side of the road as possible, leaving only six to eight
inches between her vehicle’s door and the bank of the road.
Plaintiff testified that Defendant’s vehicle

came around the curve and it was heading just straight at
me, and it was going fast. But the main thing was
[Defendant] wasn’t looking, and I thought to myself, oh my
God, and then she looked up. She did look up and then she
swerved. So, you know, instead of hitting me head on, she
caught my corner.

Defendant testified the accident occurred in a curve and
that when she first saw Plaintiff, Plaintiff was in the
middle of the road. Defendant testified she was also in the
middle of the road, but that she slammed on her brakes and
swerved to the right. Defendant testified that she measured
the width of the vehicle she was driving at the time of the
accident and it was approximately 6.4 feet wide.

Leah McCall (Trooper McCall) testified she was a trooper
with the North Carolina State Highway Patrol on 19 December
2002, when she responded to the accident and conducted an
investigation. Trooper McCall testified that Defendant made
the following statement on the day of the accident: “I was
coming down the road. By the time I saw the other car I
slammed on my brakes and [Plaintiff] swerved over in my
direction and we hit.” Trooper McCall also testified that
she measured the tire impressions on the road behind
Plaintiff’s and Defendant’s vehicles and that the tire
impressions were almost the same in length. Plaintiff’s
skid marks were 30.9 feet long and Defendant’s skid marks
were 31.3 feet long. Trooper McCall testified that the
width of the road where the accident occurred was 14.4 feet
and that Plaintiff’s vehicle was approximately six feet
wide. The remainder of the factual and procedural history
of the case is set forth as necessary in the analysis
portion of this opinion.

I.

Plaintiff first argues the trial court erred by submitting
the issue of contributory negligence to the jury. Plaintiff
argues there was no evidence suggesting a lack of due care
concerning her lookout and control and, as a result, there
was no evidence of proximate cause. “Contributory
negligence is `negligence on the part of the plaintiff
which joins, simultaneously or successively, with the
negligence of the defendant . . . to produce the injury of
which the plaintiff complains.'” Bosley v. Alexander, 114
N.C. App. 470, 472, 442 S.E.2d 82, 83 (1994) (quoting
Jackson v. McBride, 270 N.C. 367, 372, 154 S.E.2d 468, 471
(1967)). To establish contributory negligence, a defendant
must demonstrate: “(1) a want of due care on the part of
the plaintiff; and (2) a proximate connection between the
plaintiff’s negligence and the injury.” Whisnant v.
Herrera, 166 N.C. App. 719, 722, 603 S.E.2d 847, 850
(2004). “The issue of contributory negligence should be
submitted to the jury if all the evidence and reasonable
inferences drawn therefrom viewed in the light most
favorable to the defendant tend to establish or suggest
contributory negligence.” Bosley, 114 N.C. App. at 472, 442
S.E.2d at 83. “‘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
(quoting Pearson v. Luther, 212 N.C. 412, 421, 193 S.E.
739, 745 (1937)),modified and aff’d per curiam, 318 N.C.
407, 348 S.E.2d 813 (1986).

In the present case, there was sufficient evidence of
Plaintiff’s contributory negligence to submit the issue to
the jury. Defendant testified that the accident occurred in
a curve and that when she first saw Plaintiff’s vehicle, it
was in the middle of the road. Defendant testified she was
also in the middle of the road, but that she slammed on her
brakes and swerved to the right. Defendant’s testimony that
Plaintiff was in the middle of the road tends to show that
Plaintiff did not exercise proper lookout and control of
her vehicle.

Trooper McCall testified that Defendant made the following
statement on the day of the accident: “I was coming down
the road. By the time I saw the other car I slammed on my
brakes and [Plaintiff] swerved over in my direction and we
hit.” This testimony tends to show that Plaintiff did not
exercise proper lookout or control of her vehicle. Trooper
McCall also testified that she measured the tire impressions
behind Plaintiff’s and Defendant’s vehicles and that the
tire impressions were almost the same in length.
Plaintiff’s skid marks were 30.9 feet long and Defendant’s
skid marks were 31.3 feet long. This tends to show that
both vehicles skidded approximately the same distance before
impact and that neither Plaintiff nor Defendant exercised
proper control of their vehicles. We conclude this evidence
was sufficient for the trial court to submit the issue of
Plaintiff’s contributory negligence to the jury and we
overrule this assignment of error.

II.

Plaintiff next argues there was insufficient evidence to
warrant the trial court’s instruction on the general duty
to drive on the right hand side of the road as evidence of
contributory negligence, and that this instruction misled
the jury. Our Court reviews jury charges contextually and
in their entirety. Hughes v. Webster, ___ N.C. App. ___,
___, 625 S.E.2d 177, 180, disc. review denied, 360 N.C.
533, 633 S.E.2d 816 (2006). “The charge will be held to be
sufficient if `it presents the law of the case in such
manner as to leave no reasonable cause to believe the jury
was misled or misinformed[.]'” Id. at ___, 625 S.E.2d at
180-81 (quoting Jones v. Development Co., 16 N.C. App. 80,
86-87, 191 S.E.2d 435, 440,cert. denied, 282 N.C. 304, 192
S.E.2d 194 (1972)).

In the present case, the trial court instructed the jury as
follows: “With respect to . . . [D]efendant’s third
contention, the motor vehicle law provides that a motorist
shall drive on the right half of the street or highway. A
violation of this law is negligence within itself.”

There was sufficient evidence presented at trial to support
this instruction. Trooper McCall testified that the width
of the road where the accident occurred was 14.4 feet.
Trooper McCall also testified that the vehicle driven by
Plaintiff was approximately six feet wide. Defendant
testified she measured the width of the vehicle she was
driving at the time of the accident and it was approximately
6.4 feet wide. Therefore, it was possible for the two
vehicles to pass each other on the roadway. Plaintiff also
testified that there was room for two vehicles to pass each
other safely at the point where the collision occurred.
Despite there being sufficient room for both vehicles to
pass each other, Defendant testified that both vehicles
were driving in the middle of the road just before the
accident. Therefore, the trial court did not err by
instructing the jury on the general duty to drive on the
right hand side of the road.

Plaintiff also argues the jury instruction misled the jury
because it did not take into account the narrowness of the
road in question. However, in addition to the challenged
instruction, the trial court also instructed the jury as
follows: “When the conditions existing at the scene
increase the danger in comparison to normal conditions, the
care required of the operator is correspond[ingly]
increased.” With respect to speed, the trial court also
instructed that “[i]n determining whether a vehicle was
being operated at a speed greater than was reasonable and
prudent you should consider . . . the width and the nature
of the roadway[.]” We find no error in the jury instruction
as a whole and overrule this assignment of error.

III.

Plaintiff argues the trial court erred by denying her
motion for directed verdict because there was insufficient
evidence of Plaintiff’s contributory negligence. “The
standard of review of directed verdict is whether the
evidence, taken in the light most favorable to the non
— moving party, is sufficient as a matter of law to
be submitted to the jury.” Davis v. Dennis Lilly Co., 330
N.C. 314, 322, 411 S.E.2d 133, 138 (1991). Because this is
the same standard of review as we applied in reviewing
Plaintiff’s first assignment of error, and because there
was sufficient evidence of Plaintiff’s contributory
negligence to go to the jury, we overrule this assignment
of error.

IV.

Plaintiff next argues the trial court erred by failing to
instruct the jury that a motorist has a duty, “when driving
on a narrow, single lane road, to slow down and if
necessary stop in order to yield the right of way within a
narrow lane of travel.” To prevail on the issue of whether
a requested instruction should have been submitted to the
jury, the party requesting the instruction must demonstrate
that “(1) the requested instruction was a correct statement
of law and (2) was supported by the evidence, and that (3)
the instruction given, considered in its entirety, failed
to encompass the substance of the law requested and (4)
such failure likely misled the jury.” Liborio v. King, 150
N.C. App. 531, 534, 564 S.E.2d 272, 274, disc. review
denied, 356 N.C. 304, 570 S.E.2d 726 (2002).

In the present case, the requested instruction was not
supported by the evidence. Plaintiff requested this
instruction on the basis of Brown v. Products Co., Inc.,
222 N.C. 626, 24 S.E.2d 334 (1943), where the plaintiff’s
vehicle collided with a vehicle owned by the corporate
defendant (the defendant) and driven by the defendant
Hampton (Hampton). Id. at 627, 24 S.E.2d at 335. The
plaintiff took a voluntary nonsuit with respect to Hampton
and, on the defendant’s motion, the trial court entered
judgment of nonsuit as to the defendant. Id.

In Brown, there had been a heavy snow prior to the accident
and the snow had not been completely removed from the road
at and near the point of collision. Id. at 627, 24 S.E.2d
at 335.

About 150 feet north of the point of collision the
snowbank began to gradually encroach upon the hard surface
on the west side until a lane only about 10 feet wide on
[the] plaintiff’s left side of the road remained for use.
This lane continued about 50 or 75 feet and then opened up
“all at once to two lanes.” [The] [p]laintiff entered the
restricted area as he rounded a curve and was in the
narrow 10-foot passageway when Hampton approached. At that
point the snowbank on the west half of the road was 2 or 3
feet high and was observable by motorists approaching from
the south. While [the] plaintiff was in this narrow lane
he observed Hampton about 400 feet away approaching from
the south traveling about 45 miles per hour. Hampton did
not slow down, but entered the narrow lane before [the]
plaintiff could get out to a point where he could safely
turn to his right. [The] [p]laintiff attempted to cut to
the right on the snow bank, but was unable to do so, and
the cars collided. [The] [p]laintiff was traveling 20 to
25 miles per hour. He had chains on his wheels.

Id. at 627-28, 24 S.E.2d at 335.

Our Supreme Court recognized that at the point of
collision, the highway had been narrowed to a “one-way or
one-lane road-not a two-lane highway[,]” and that the
plaintiff had entered this “one-way lane” before Hampton
entered. Id. at 629, 24 S.E.2d at 336. The Court held:

If Hampton did see and observe this condition which
created a special hazard and made it impossible for two
cars to pass in safety, or if by keeping a proper lookout
he could have seen, it was his duty to slow down and if
necessary to stop in order to yield the right of way
within the narrow lane to [the] plaintiff.

Id. Accordingly, the Court reversed judgment of nonsuit for
the defendant. Id. at 630, 24 S.E.2d at 336

In the present case, unlike in Brown, the road on which the
accident occurred was not a one-way or one-lane road. The
road was wide enough to allow two vehicles to pass.
Plaintiff even testified that there was room for two
vehicles to pass each other safely at the point where the
collision occurred. Therefore, the evidence did not support
the requested instruction.

Moreover, the instructions given encompassed the substance
of the requested instruction, and therefore, the
instructions did not mislead the jury. With respect to
control, the trial court instructed:

[T]he operator of a motor vehicle on a highway has a duty
to keep the vehicle under proper control. This means that
the operator is at all times under a duty to operate a
vehicle at a speed and in a manner which allows him or her
to maintain that degree of control over the vehicle
which a reasonably careful prudent person would have
maintained under the same or similar circumstances. When
the conditions existing at the scene increase the danger
in comparison to normal conditions, the care required of
the operator is correspond[ingly] increased.

The trial court also instructed the jury that “the motor
vehicle law provides that it is unlawful to operate a motor
vehicle on a street or highway at a speed greater than is
reasonable and prudent under the conditions then existing.”
The trial court further instructed:

In determining whether a vehicle was being operated at a
speed greater than was reasonable and prudent you should
consider all of the evidence about the physical features
of the scene; the hour of day or night; the weather
conditions; the extent of other traffic; the width and
nature of the roadway, and any other circumstances shown
to exist.

The trial court also instructed the jury on the duty to
decrease speed to avoid a collision as follows:

[T]he motor vehicle law provides that the fact that a
person is driving her vehicle at a speed lower than a
posted speed limit does not relieve her of a duty to
decrease her speed as might be necessary to avoid
colliding with any vehicle on a street or highway and to
avoid injury to any person or property. Thus, even though
the speed of . . . [D]efendant’s vehicle was lower than
the posted speed limit set by law, if she failed to
decrease speed when under the existing circumstances a
reasonably careful[] and prudent person would have
decreased the speed to avoid colliding with any vehicle on
a street or highway and to avoid any injury with any
person or damage to any property, then such failure would
be negligence.

The trial court’s instruction to maintain control as a
reasonably prudent person would under the circumstances
addressed the need to stop or yield the right of way on a
narrow road. The control instruction also stated that the
level of care increased “[w]hen the conditions existing at
the scene increase the danger in comparison to normal
conditions[.]” The trial court’s instructions on speed
addressed the duty to slow down under certain circumstances
and the trial court specifically instructed the jury to
consider the width and nature of the roadway when assessing
whether the vehicles were traveling at a safe speed.
Therefore, the instructions given encompassed the requested
instruction and did not mislead the jury. Accordingly,
because the requested instruction was not supported by the
evidence and because the instructions given encompassed the
substance of the requested instruction, we overrule this
assignment of error.

V.

Plaintiff next argues the trial court erred by excluding
Trooper McCall’s accident report diagram, which showed that
Defendant’s vehicle was left of the centerline of the road
at the point of impact. We disagree.

Defendant argues that we should dismiss this assignment of
error because the excluded accident report diagram was not
included in the record on appeal. However, the transcript
reveals that the diagram, which was prepared by Trooper
McCall from the evidence she gathered at the scene,
attempted to show the placement of the vehicles at the time
of the accident. Specifically, the diagram attempted to show
that Defendant’s vehicle was over the centerline of the
road at the point of impact. Therefore, because the
substance of the diagram is in the transcript, we address
this issue.

Plaintiff argues that the diagram merely portrayed Trooper
McCall’s physical findings, the results of which “deem[ed]
. . . Defendant to [have been] left of center at the point
of impact[.]” However, our Court has held that testimony
concerning point of impact is impermissible lay opinion
testimony. In State v. Wells, 52 N.C. App. 311, 278 S.E.2d
527 (1981), an officer testified that he arrived on the
scene of an accident and discovered two vehicles, a Ford
and a Chevrolet, in the eastbound lane of a two-lane road.
Id. at 311-12, 278 S.E.2d at 528. The Ford was facing south
and the Chevrolet was facing west; both vehicles were
heavily damaged on the left front side. Id. at 312, 278
S.E.2d at 528. The officer found the defendant, who was
unconscious, in the Ford, and found the decedent in the
Chevrolet. Id. The officer found glass, dirt and pieces of
chrome in the center of the eastbound lane and found a
fender in the westbound lane. Id. The officer also observed
fresh gouge marks near the debris in the center of the
eastbound lane and observed asphalt under the front of the
Ford. Id. The officer then concluded, based on the location
of the gouge marks and the debris, that the impact had
occurred in the center of the eastbound lane. Id. The
defendant was convicted of, inter alia, involuntary
manslaughter. Id. at 313, 278 S.E.2d at 529.

Our Court recognized that “while it is competent for an
investigating officer to testify as to the condition and
position of the vehicles and other physical facts observed
by him at the scene of an accident, his testimony as to his
conclusions from those facts is incompetent.” Id. at 314,
278 S.E.2d at 529. Our Court held that “[b]y testifying
that his investigation revealed the point of impact between
the two cars to be in [the] decedent’s lane of travel, [the
officer] stated an opinion or conclusion which invaded the
province of the jury.” Id. Therefore, our Court held that
the defendant was entitled to a new trial on the
manslaughter charge as a result of the trial court’s
erroneous admission of the officer’s incompetent opinion
testimony. Id. at 316, 278 S.E.2d at 530. In the present
case, Trooper McCall’s diagram indicated that the point of
impact occurred in Plaintiff’s lane of travel. However,
Trooper McCall did not witness the accident and reached
this conclusion on the basis of her physical findings at
the scene of the accident. Because the diagram depicting
the point of impact was in essence a conclusion, the trial
court did not err by excluding the diagram from evidence.
We overrule this assignment of error.

VI.

Plaintiff argues the trial court erred by denying her
motion in limine, which sought to allow the attorney for
Plaintiff’s underinsured motorist carrier, J. William
Russell (Mr. Russell), to be referred to as representing
the “unnamed defendant.” The trial court introduced Mr.
Russell as follows: “Also at the defense table with Ms.
Arcuri on behalf of . . . [D]efendant is attorney William
Russell.” Plaintiff argues it was “inherently prejudicial
that the jury was led to believe that Mr. Russell was
present at trial in a representative capacity for . . .
Defendant, as he simply was not.”

However, Plaintiff cites no authority for her position, and
has therefore abandoned this assignment of error. See
N.C.R. App. P. 28(b)(6). Moreover, Plaintiff does not claim
any specific prejudice, apart from alleging the trial
court’s error was “inherently prejudicial.” We further note
that N.C. Gen. Stat. § 20-279.21(b)(4) (2005)
provides that “[u]pon receipt of notice, the underinsured
motorist insurer shall have the right to appear in defense
of the claim without being named as a party therein, and
without being named as a party may participate in the suit
as fully as if it were a party.” We overrule this
assignment of error.

Affirmed.

Judges WYNN and McCULLOUGH concur.