Fisk v. Murphy
212 N.C. App. 667
| N.C. Ct. App. | 2011Background
- This case arises from a 15 September 2005 collision in Asheville between Fisk's motorcycle and Murphy's pickup; Murphy worked for Republic Services of North Carolina and was on a job-related activity when the collision occurred.
- Glenn Bridge Road (dominant) had a flashing yellow light and warning sign; Old Shoals Road (servient) had a stop sign 50 feet before the intersection, and a flashing red light on Old Shoals triggered by Glenn Bridge Road traffic warned of entering vehicles.
- Fisk was familiar with the intersection and regularly traveled Glenn Bridge Road; Fisk did not testify, but his deposition was read; Murphy testified to stopping at the stop sign and entering the intersection, resulting in the crash.
- At impact Murphy's truck was straddling the double yellow line; Fisk's motorcycle struck the rear portion of Murphy's truck; no gouge or skid marks were observed by the responding trooper.
- Plaintiffs alleged negligence by Murphy and Republic; defendants asserted Fisk contributory negligence for failure to maintain lookout, control, or safe operation.
- The jury found Murphy negligent and Fisk contributorily negligent; the trial court denied motions for judgment notwithstanding the verdict and for a new trial, and plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fisk was contributorily negligent as a matter of law. | Fisk acted cautiously given limited sight distance and signals; Sutton's reconstructions show no time to avoid. | Circumstances required Fisk to yield and to anticipate others' failure to observe duty; evidence shows Fisk failed to reduce speed or keep lookout. | Yes; there was sufficient evidence to submit contributory negligence to the jury. |
Key Cases Cited
- Penland v. Green, 289 N.C. 281, 221 S.E.2d 365 (North Carolina 1976) (duty to exercise care when circumstances put one on notice others may not observe duty)
- Whisnant v. Herrera, 166 N.C.App. 719, 603 S.E.2d 847 (North Carolina App. 2004) (two elements of contributory negligence and standard for submission to jury)
- Jackson v. McBride, 270 N.C. 367, 154 S.E.2d 468 (North Carolina 1967) (definition of contributory negligence and joinder of defendant’s and plaintiff’s negligence)
- Farmer v. Reynolds, 4 N.C.App. 554, 167 S.E.2d 480 (North Carolina App. 1969) (servient street right-of-way when immediate hazard exists)
- Snead v. Holloman, 101 N.C.App. 462, 400 S.E.2d 91 (North Carolina App. 1991) (sufficiency of evidence to submit contributory negligence to jury)
- Austin v. Bald II, L.L.C., 189 N.C.App. 338, 658 S.E.2d 1 (North Carolina App. 2008) (standard for reviewing denial of judgment notwithstanding the verdict)
- Worthington v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (North Carolina 1982) (abuse of discretion standard for Rule 59 motions)