18 N.C. App. 85 | N.C. Ct. App. | 1973
Plaintiff asserts on appeal that the trial court, erred in submitting the issue of contributory negligence to the jury: and in declaring and explaining the law relating to such issue. ..
In North Carolina, a defendant who asserts the contributory negligence of plaintiff as a defense has the burden of proving it, and a contention that certain acts or conduct of the plaintiff constituted. contributory negligence should not be submitted to the jury unless there is evidence from which such conduct might reasonably be inferred. In determining the sufficency of that evidence the defendant is entitled to have any evidence tending to establish contributory negligence considered in the light most favorable to him and, if diverse inferences can reasonably be drawn from it, the evidence must be submitted to the jury upon proper instructions. Atkins v. Moye, 277 N.C. 179, 176 S.E. 2d 789 (1970); Jones v. Holt, 268 N.C. 381, 150 S.E. 2d 759 (1966).
In asserting the defense of contributory negligence, defendant alleged in his answer that plaintiff, without first giving a signal or notice of any kind, stopped suddenly thereby causing a collision to occur between the two vehicles. Plaintiff’s and defendant’s evidence as to whether a signal was given is in conflict. However, defendant testified that plaintiff did not have time to give any arm signal or hold his hand out the window “and all anybody had time to do was throw on brakes.” Defense witness Bateman similarly testified that there was no time interval between the time plaintiff’s vehicle came to a stop and the collision with defendant.
“G.S. 20-154, which provides that the driver of a motor vehicle shall not stop without first seeing that he can do so in safety and that he must give a signal of his intention where the operation of other cars might be affected, is not*88 applicable where the driver has no choice.” Griffin v. Ward, 267 N.C. 296, 298, 148 S.E. 2d 183 (1966).
In Griffin, the driver was confronted with a situation which demanded that he stop because the line of cars in front of him had done so. Because it had been raining and the windows of his car were up, he could not give a hand signal.
In the case at hand, even if a jury should believe that plaintiff failed to give any signal indicating that he was going to stop, defendant’s own evidence established that plaintiff had no time in which to give a signal and therefore was under no statutory duty to do so. Plaintiff’s alleged failure to follow the requirements of G.S. 20-154 was the sole basis of defendant’s plea of contributory negligence and the primary basis of trial judge’s instructions on the issue. We hold that there was insufficient evidence to submit such an issue to the jury.
Assuming arguendo that the issue of contributory negligence was properly submitted to the jury, and we think it was not, the trial court further erred in giving an instruction to the effect that a violation of G.S. 20-154 is negligence per se. The following instruction is taken from the judge’s charge to the jury:
“I instruct you that a failure to give such a signal as required by this statute is negligence.”
Prior to 1 July 1965 a violation of G.S. 20-154 had been held by the North Carolina Supreme Court to be negligence per se; Cowan v. Transfer Co., 262 N.C. 550, 138 S.E. 2d 228 (1964). However, the following proviso was added to G.S. 20-154 (b) by Chapter 768 of the 1965 Session Laws effective 1 July 1965:
“ [P] rovided further that the violation of this section shall not constitute negligence per se.”
In interpreting G.S. 20-154 as amended, this Court has stated:
“Since a violation of G.S. 20-154 is no longer to be considered negligence per se, the jury if they find as a fact that the statute was violated, must consider the violation along with all other facts and circumstances and decide whether, when so considered, the violator has breached his*89 common law duty of exercising ordinary care.” Kinney v. Goley, 4 N.C. App. 325, 332, 167 S.E. 2d 97 (1969).
For errors committed in the trial below, there must be a
New trial.