Cook v. Turlington ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-956
Filed: 1 September 2015
Mecklenburg County, No. 10 CVS 18586
MICHAEL H. COOK, Plaintiff,
v.
GINNY ELIZABETH TURLINGTON, Defendant.
Appeal by defendant from judgment entered 7 September 2012 and order
entered 9 January 2014 by Judge H. William Constangy in Mecklenburg County
Superior Court. Heard in the Court of Appeals 5 February 2015.
The Sasser Law Firm, P.A., by Charles McB. Sasser, for plaintiff-appellee.
Golding Holden & Pope, LLP, by James W. Pope, Robert J. Aylward and Brooks
T. Pope, for defendant-appellant.
GEER, Judge.
Defendant Ginny Elizabeth Turlington appeals from a final judgment in favor
of plaintiff Michael H. Cook and from an order denying defendant’s motion for a new
trial and judgment notwithstanding the verdict. On appeal, defendant argues that
the trial court erred in directing a verdict in favor of plaintiff on the issues of
defendant’s negligence and plaintiff’s contributory negligence. The evidence, when
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Opinion of the Court
viewed in a light most favorable to defendant, shows that defendant rear-ended
plaintiff’s motorcycle when plaintiff stopped at an intersection to yield to a fire truck.
Even assuming that the light was green in plaintiff’s and defendant’s favor,
and that defendant did not hear or see the fire truck approaching, the only inference
to be drawn from the evidence is that defendant was negligent by following too closely
or failing to keep a proper lookout. With respect to contributory negligence, we reject
defendant’s suggestion that a reasonable jury could find that plaintiff should have
proceeded through the intersection in front of the oncoming fire truck in order to avoid
being rear-ended by defendant. Accordingly, we hold that the trial court properly
entered a directed verdict in favor of plaintiff on the issues of negligence and
contributory negligence.
Facts
This lawsuit arises out of a rear-end collision that occurred on 3 September
2007 around 1:30 p.m. at the intersection of 36th Street and the Plaza in Charlotte,
North Carolina. Plaintiff filed suit on 3 September 2010, asserting a claim for
negligence against defendant and negligent entrustment against Jeffery Scott Smith,
the owner of the vehicle driven by defendant. On 18 October 2010, defendants filed
an answer in which they asserted that plaintiff was contributorily negligent. On 1
July 2011, plaintiff voluntarily dismissed his claim of negligent entrustment against
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Mr. Smith. The case proceeded to trial against defendant at the 6 August 2012 Civil
Session of the Superior Court of Mecklenburg County.
Based upon the evidence presented at trial, the following facts are undisputed.
On 3 September 2007, plaintiff was riding a motorcycle south down the Plaza.
Defendant was also heading south on the Plaza in her Nissan Pathfinder behind
plaintiff's motorcycle. The Plaza is a four lane road running north to south, with two
lanes in each direction and a median in the center. The speed limit on the Plaza is
35 miles per hour, and the road is very straight. The weather that day was clear and
dry.
Defendant first saw plaintiff’s motorcycle shortly after she turned onto the
Plaza. She and plaintiff were travelling in the same direction, in the left hand lane,
and at the same rate of speed. There were no other vehicles between defendant and
plaintiff and nothing blocking defendant’s view of plaintiff. When plaintiff reached
the intersection of the Plaza and East 36th Street, he did not proceed through the
intersection because he heard and saw a fire truck, with its lights flashing and siren
sounding, travelling east on East 36th Street approaching the intersection from his
right. The car in the right southbound lane also did not proceed through the
intersection. Defendant, however, did not see or hear the fire truck and did not brake
in time to avoid colliding into the back of plaintiff’s motorcycle.
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The remaining details regarding the circumstances leading to the collision are
disputed somewhat. At trial, in addition to plaintiff and defendant, the following eye
witnesses testified: David Ernest Dobbins, the fire truck engineer; Alicia Hendrix,
the driver of a green car in the right lane next to plaintiff; and Ulysses West, the
driver of a white truck that was travelling behind defendant.
According to plaintiff, prior to the collision, he was travelling south on the
Plaza in the right lane at about 35 miles per hour. About a block away from the
intersection of the Plaza and East 36th Street, plaintiff signaled and moved into the
left lane. Once plaintiff was in the left lane, or a little bit before, the light at the
intersection turned red, so he slowed down and came to a gradual stop at the white
line, next to a green vehicle that was stopped in the right lane. As soon as plaintiff
reached the intersection, he heard the fire truck and then saw the fire truck
approaching from his right approximately one block away. Plaintiff testified that
once he heard the fire truck, “I sat back on my motorcycle and crossed my arms and
looked at the lady beside me and I looked at the firetruck [sic] beside me also and just
stared at it just waiting for it to make its turn in front of us.” He estimated that he
was rear-ended approximately 30 seconds later.
Ms. Hendrix, the driver of the green car stopped in right lane next to plaintiff,
testified that when plaintiff pulled up in the left lane, the light was still red. She
estimated that she and plaintiff were stopped at the intersection for two or three
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seconds before the light turned green. Once the light turned green, however, Ms.
Hendrix did not proceed through the intersection because she heard the fire truck
coming.
Mr. Dobbins, the fire truck driver, testified that he was travelling about 55 to
60 miles per hour down 36th Street. As he approached the Plaza, he slowed down to
gain control of the intersection. When he was about eight truck lengths away from
the intersection, he saw plaintiff look up and see him, and stop quickly. Mr. Dobbins
explained that plaintiff “stopped it quick. I don’t think he was going at a high rate of
speed when he stopped it. It was almost like he had just taken off or something, you
know. But I know he just -- he looked at me, boom, he stopped.” When Mr. Dobbins
saw that plaintiff’s motorcycle and Ms. Hendrix’s vehicle were both stopped, and that
plaintiff was looking over at him, he knew he had control of the intersection. When
he saw defendant’s vehicle approaching from behind plaintiff, he yelled to his captain
“She’s going to hit him” two or three times before the collision occurred. Mr. Dobbins
saw that defendant had a phone up to her ear, and he believed that she was distracted
and talking on the phone. It appeared to Mr. Dobbins that defendant did not attempt
to slow down or put on the brakes until after she had crashed into plaintiff’s
motorcycle.
Defendant and Mr. West testified for the defense. According to defendant, she
was travelling southbound on the Plaza at about 35 miles per hour and was about
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two or three car lengths behind plaintiff. She was listening to the radio at a “normal
or a little softer” volume and her windows were rolled up. As she approached 36th
Street, the light was green. She then saw plaintiff stop quickly, so she slammed on
her brakes and slid into him. She did not see or hear the fire truck until after the
collision. She denied that she was talking on the phone when the crash occurred.
Mr. West was driving a white truck southbound on the Plaza behind plaintiff
and defendant. Mr. West testified that after plaintiff moved into the left lane in front
of defendant, Mr. West lost full visibility of plaintiff’s motorcycle, but was certain that
“it wasn’t a full distance” between defendant’s vehicle and plaintiff’s motorcycle. As
the vehicles approached 36th Street, Mr. West had his windows rolled down and could
hear a fire truck siren, but could not tell where it was coming from. He does not recall
there being any vehicles already stopped at the intersection at any time up to the
point he heard the sirens. When Mr. West saw the fire truck, it was about a block
away from the intersection. He testified that as he approached the intersection, the
light was green, but that all the cars made an “immediate stop” when they heard the
fire truck sirens. Because of the position of his truck behind defendant’s vehicle, Mr.
West was unable to see the manner in which plaintiff stopped in front of defendant.
At the close of all evidence, plaintiff moved for a directed verdict as to the issues
of defendant’s negligence and plaintiff’s contributory negligence. The trial court
granted plaintiff’s motions and submitted only the issue of proximate cause and
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damages to the jury. In accordance with the jury’s verdict, the trial court, on 7
September 2012, entered a judgment against defendant in the amount of $535,732.65.
On 10 September 2012, defendant filed a Motion for New Trial and Judgment
Notwithstanding the Verdict pursuant to Rules 50(b) and 59 of the Rules of Civil
Procedure. A hearing was held on defendant’s motion on 18 February 2013, and, on
9 January 2014, the trial court entered an order denying the motion. Defendant
timely appealed both the judgment and the order to this Court.
Discussion
On appeal, defendant argues that the trial court erred in granting plaintiff’s
motion for a directed verdict against defendant as to negligence and 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). “In determining the sufficiency of the evidence to withstand a motion
for a directed verdict, all of the evidence which supports the non-movant’s claim must
be taken as true and considered in the light most favorable to the non-movant, giving
the non-movant the benefit of every reasonable inference which may legitimately be
drawn therefrom and resolving contradictions, conflicts, and inconsistencies in the
non-movant’s favor.” Turner v. Duke Univ., 325 N.C. 152, 158, 381 S.E.2d 706, 710
(1989).
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Plaintiff’s Contributory Negligence
We first address whether the trial court erred in granting plaintiff’s motion for
a directed verdict as to plaintiff’s contributory negligence. “ ‘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.’ ” Seay v. Snyder, 181 N.C. App. 248, 251, 638 S.E.2d 584, 587 (2007)
(quoting Bosley v. Alexander, 114 N.C. App. 470, 472, 442 S.E.2d 82, 83 (1994)).
“A defendant who asserts contributory negligence as a defense has the burden
of proving it.” White v. Greer, 55 N.C. App. 450, 452, 285 S.E.2d 848, 850 (1982).
Therefore, defendant has the burden of showing “ ‘(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.’ ” Seay, 181 N.C. App. at 251, 638 S.E.2d at 587 (quoting Whisnant v.
Herrera, 166 N.C. App. 719, 722, 603 S.E.2d 847, 850 (2004)). Where, as here, the
plaintiff moves for a directed verdict on the defendant’s defense of contributory
negligence, the motion should be denied “if there is more than a scintilla of evidence
supporting each element of [defendants’] claim that plaintiff was contributorily
negligent[.]” Hawley v. Cash, 155 N.C. App. 580, 583, 574 S.E.2d 684, 686 (2002)
(internal quotation marks omitted).
Defendant asserts that plaintiff was negligent when he “abruptly and without
warning applied the brakes while the traffic signal was emitting a green light in their
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direction of travel.” We disagree. As plaintiff correctly points out, a green light “ ‘is
not a command to go, but a qualified permission to proceed lawfully and carefully in
the direction indicated. In other words, notwithstanding a favorable light, the
fundamental obligation of using due and reasonable care applies.’ ” McBride v.
Freeze, 268 N.C. 681, 683, 151 S.E.2d 661, 663 (1966) (quoting Hyder v. Asheville
Storage Battery Co., 242 N.C. 553, 557, 89 S.E.2d 124, 128 (1955)).
Pertinent to the facts in this case, N.C. Gen. Stat. § 20-156(b) (2013) requires
vehicles to yield the right-of-way to emergency vehicles at intersections, even when
the light is in their favor:
The driver of a vehicle upon the highway shall yield the
right-of-way to . . . fire department vehicles . . . when the
operators of said vehicles are giving a warning signal by
appropriate light and by bell, siren or exhaust whistle
audible under normal conditions from a distance not less
than 1,000 feet. When appropriate warning signals are
being given, as provided in this subsection, an emergency
vehicle may proceed through an intersection or other place
when the emergency vehicle is facing . . . a traffic light
which is emitting a . . . red light.
As explained by our Supreme Court, the duty to yield to an emergency vehicle
under this statute does not apply “until an appropriate warning has been directed to
him, and he has reasonable opportunity to yield his prior right. The audible sound
which the statute, G.S. 20-156(b), requires is such a sound as was in fact heard and
comprehended, or should have been heard and its meaning understood, by a
reasonably prudent operator called upon to yield the right of way.” McEwen Funeral
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Serv., Inc. v. Charlotte City Coach Lines, Inc., 248 N.C. 146, 151, 102 S.E.2d 816, 820-
21 (1958). Plaintiff, Ms. Hendrix in the green car in the right lane, and Mr. West in
the white truck behind defendant, each heard the fire truck’s siren and stopped their
vehicles to allow the fire truck to pass, despite the light being green in their favor. A
reasonable jury could not find that plaintiff's decision not to proceed through the
intersection was unreasonable under these circumstances.
Defendant argues, nevertheless, that plaintiff violated N.C. Gen. Stat. § 20-
154(a) (2013), which provides, in pertinent part, that:
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 if any pedestrian may be affected by such
movement shall give a clearly audible signal by sounding
the horn, 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.
This statute imposes two duties upon a driver who intends to turn or stop: (1)
“the driver must ‘see that the movement can be made in safety[,]’ ” and (2) “the driver
must ‘give the required signal when the operation of any other vehicle may be
affected.’ ” Blankley v. Martin, 101 N.C. App. 175, 179-80, 398 S.E.2d 606, 609 (1990)
(quoting Clarke v. Holman, 274 N.C. 425, 429, 163 S.E.2d 783, 786 (1968)). A driver
may signal his intention to stop with a hand signal “or by any mechanical or electrical
signal device approved by the Division.” N.C. Gen. Stat. § 20-154(b). Our case law
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indicates that brake lights are an appropriate way to signal one’s intention to stop.
See Griffin v. Ward, 267 N.C. 296, 298, 148 S.E.2d 133, 135 (1966) (driver’s negligence
based on a violation of N.C. Gen. Stat. § 20-154 for failure to signal could be “based
upon the statement of the plaintiff that she saw no brake lights burning on the rear
of his car”); Warner v. Lazarus, 229 N.C. 27, 29, 47 S.E.2d 496, 498 (1948) (noting
driver “considered the flash of the brake light on the [preceding] car as a signal that
the driver of the car intended to stop or at least to slow down”). See also State v.
Heien, 366 N.C. 271, 275, 737 S.E.2d 351, 354 (2012) (noting that pursuant to N.C.
Gen. Stat. § 20-129, all motorists have a duty to ensure that they have at least one
functioning brake light). In this case, plaintiff has not pointed to any evidence that
the brake lights on plaintiff’s motorcycle did not properly function.
Furthermore, our Supreme Court has held that N.C. Gen. Stat. § 20-154 “is not
applicable where the driver has no choice.” Griffin, 267 N.C. at 298, 148 S.E.2d at
135. For example, in Griffin, the “defendant was confronted with a situation which
demanded that he stop because the line of cars in front of him had done so and he
could not turn left because of oncoming traffic.” Id. Additionally, “[i]t had been
raining and the windows of his car were up so he could give no hand signal[.]” Id.
Therefore, the only applicable provision of N.C. Gen. Stat. § 20-154 was defendant’s
duty to signal his intention to stop through the use of his brake lights. 267 N.C. at
298, 148 S.E.2d at 135.
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Here, as in Griffin, plaintiff was “confronted with a situation which demanded
that he stop” -- the approaching fire truck with its sirens blaring to which he had a
duty to yield. Id. Defendant suggests, nevertheless, that plaintiff should have
continued on through the intersection in front of the fire truck instead of stopping
suddenly and risking being rear-ended by the vehicle behind him. We disagree.
It is well established that a person “ ‘is entitled to assume and to act upon the
assumption that every other person will perform his duty and obey the law and that
he will not be exposed to danger which can come to him only from the violation of
duty or law by such other person.’ ” Powell v. Lloyd, 234 N.C. 481, 485, 67 S.E.2d
664, 666 (1951) (quoting Chaffin v. Brame, 233 N.C. 377, 380-81, 64 S.E.2d 276, 279
(1951)). As explained above, all drivers who actually heard, or should have heard,
the fire truck’s sirens had a corresponding duty to yield to the fire truck as it passed
through the intersection. Plaintiff heard the siren and was entitled to assume that
the vehicles around him would also hear the siren and comply with their duty to yield
to the fire truck, and stop their vehicles before reaching the intersection. At the very
least, he was entitled to assume that the vehicles behind him would maintain a safe
distance and exercise reasonable care to brake when they saw plaintiff and other
vehicles coming to a stop.
Defendant additionally cites Anderson v. Talman Office Supplies, Inc., 234
N.C. 142, 66 S.E.2d 677 (1951), and Blankley in support of her argument that plaintiff
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was contributorily negligent. In Anderson, the defendant was traveling in the left
hand lane when he heard an emergency vehicle approaching from behind with its
siren activated. 234 N.C. at 143, 66 S.E.2d at 679. The defendant moved right into
the center lane of traffic and was rear-ended by the plaintiff’s vehicle. Id. The
defendant argued that he was not negligent because he had a statutory duty pursuant
to N.C. Gen. Stat. § 20-157 to move to the right side of the road immediately upon
hearing the siren of an emergency vehicle. 234 N.C. at 144, 66 S.E.2d at 679. This
Court rejected defendant’s argument and held that the “approach of a police vehicle
giving a signal by siren did not nullify or suspend the provisions of G.S. 20-154, or
relieve the defendant . . . of the duty to ascertain, before turning to his right, that
such movement could be made in safety, or to signal any vehicle approaching from
the rear.” Id. at 145, 66 S.E.2d at 680.
The facts of Anderson are easily distinguishable from the facts of this case. In
Anderson, the defendant had a duty to pull to the right side of the road to allow an
emergency vehicle approaching from behind to pass him. The defendant changed
lanes suddenly and without signaling and pulled out in front of another vehicle in a
separate lane. The approaching vehicle had no reason to anticipate the defendant’s
sudden movements. Further, prior to the defendant’s sudden movement, there was
no risk of the defendant colliding with the emergency vehicle. Any delay in moving
to the right would have only resulted in delaying the emergency vehicle’s passage.
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In contrast, here, plaintiff stopped within his same lane of travel to comply
with his duty to yield to an emergency vehicle passing by in the intersection in front
of him. If the plaintiff had failed to yield to the fire truck, it could have resulted in
more than simply delaying the fire truck’s passage through the intersection -- it could
have resulted in a collision with the fire truck. Further, plaintiff did not switch lanes
and suddenly pull out in front of another vehicle. Rather, plaintiff simply came to a
stop in his own lane of travel. Even in the event that the vehicle behind plaintiff did
not hear the siren, it nevertheless had a duty to keep a proper lookout and maintain
a safe distance that “should be sufficient to enable the operator of the car behind to
avoid danger in case of a sudden stop or decrease in speed by the vehicle ahead under
circumstances which should reasonably be anticipated by the following driver.”
Beanblossom v. Thomas, 266 N.C. 181, 188, 146 S.E.2d 36, 42 (1966).
Blankley is also distinguishable from this case. In Blankley, the defendant
rear-ended the plaintiff’s vehicle after the plaintiff had stopped to make a left turn.
101 N.C. App. at 176-77, 398 S.E.2d at 607. The issue on appeal was whether the
trial court erred by instructing the jury on plaintiff’s contributory negligence. Id. at
178, 398 S.E.2d at 608. The Court recognized that N.C. Gen. Stat. § 20-154(b)
provides that “ ‘in all areas where the speed limit is 45 miles per hour or higher and
the operator intends to turn from a direct line of travel, a signal of intention to turn
from a direct line of travel shall be given continuously during the last 200 feet
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traveled before turning.’ ” Id. at 179, 398 S.E.2d at 609 (quoting N.C. Gen. Stat. § 20-
154(b) (1989)). Because conflicting evidence was presented concerning whether and
for how long the plaintiff turned on his left turn signal before stopping, this Court
held that the trial court properly submitted the issue of plaintiff’s contributory
negligence to the jury. Here, plaintiff was not traveling in an area where the speed
limit was 45 miles per hour and he did not intend to turn. Therefore, the provision
of N.C. Gen. Stat. § 20-154(b) requiring a turn signal does not apply, and Blankley is
inapposite.
Defendant has failed to point to any evidence that plaintiff’s decision to yield
to the fire truck was unreasonable given the evidence presented at trial. Although
defendant suggests that plaintiff should have driven through the intersection, risking
a collision with the fire truck, in order to avoid being rear-ended by defendant, she
points to no specific evidence in the record which suggests that plaintiff would have
had time to clear the intersection before the fire truck reached it. As stated by this
Court in Myrick v. Peeden, 113 N.C. App. 638, 643, 439 S.E.2d 816, 819 (1994)
(quoting Snead v. Holloman, 101 N.C. App. 462, 466, 400 S.E.2d 91, 93 (1991)),
“ ‘[e]vidence which merely raises conjecture on the issue of contributory negligence is
insufficient to go to the jury.’ ” We hold that the trial court did not err by granting a
directed verdict in favor of plaintiff on the issue of contributory negligence. See Jones
v. Holt, 268 N.C. 381, 387, 150 S.E.2d 759, 764 (1966) (holding in rear-end collision
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case evidence insufficient to go to jury on issue of plaintiff’s contributory negligence
where plaintiff stopped suddenly at yellow light instead of driving through
intersection, because plaintiff was “entitled to assume that the driver of the truck
behind her had observed the yellow light, would see her brake light and would
exercise reasonable care to bring his own vehicle to a stop”).
Defendant’s Negligence
We next address whether the trial court erred in granting plaintiff’s motion for
a directed verdict as to defendant’s negligence. Plaintiff argues that, even when
viewing the evidence in a light most favorable to defendant, the evidence establishes
that defendant was negligent in that she (1) failed to yield to an emergency vehicle,
(2) was following defendant too closely, and/or (3) failed to keep a proper lookout. We
agree.
“Fundamental to the right to operate any motor vehicle is the rule of the
prudent man declared in G.S. 20-140, that he shall operate with due care and
circumspection so as not to endanger others by his reckless driving.” McEwen
Funeral Serv., Inc., 248 N.C. at 150, 102 S.E.2d at 819. “The violation of statutory
rules of the road designed to provide for human safety is either negligence per se or
the basis on which a jury can find negligence if the statute declares its violation shall
not constitute negligence as a matter of law.” Id., 102 S.E.2d at 820 (internal citations
omitted).
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Plaintiff asserts that defendant was negligent per se because she failed to stop
for a fire truck in violation of N.C. Gen. Stat. § 20-157 (2013). This statute provides:
(a) Upon the approach of any . . . fire department
vehicle . . . giving warning signal by appropriate light and
by audible bell, siren or exhaust whistle, audible under
normal conditions from a distance not less than 1000 feet,
the driver of every other vehicle shall immediately drive
the same to a position as near as possible and parallel to
the right-hand edge or curb, clear of any intersection of
streets or highways, and shall stop and remain in such
position unless otherwise directed by a law enforcement or
traffic officer until the . . . fire department vehicle . . . shall
have passed. Provided, however, this subsection shall not
apply to vehicles traveling in the opposite direction of the
vehicles herein enumerated when traveling on a four-lane
limited access highway with a median divider dividing the
highway for vehicles traveling in opposite directions, and
provided further that the violation of this subsection shall
be negligence per se.
Id. In addition, N.C. Gen. Stat. § 20-156, quoted earlier, requires that vehicles yield
to emergency vehicles at intersections.
As previously noted, the duty to yield to an emergency vehicle under N.C. Gen.
Stat. § 20-156 does not apply “until an appropriate warning has been directed” to the
vehicle, such warning being “a sound as was in fact heard and comprehended, or
should have been heard and its meaning understood, by a reasonably prudent
operator called upon to yield the right of way.” McEwen Funeral Serv., Inc., 248 N.C.
at 151, 102 S.E.2d at 820-21. We believe this reasoning applies with equal force to a
driver’s duty to stop for an emergency vehicle under N.C. Gen. Stat. § 20-157.
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Defendant, in support of her argument that she was not negligent by failing to
yield to the fire truck, points to evidence that the light was green in her favor and
that she was unable to hear the siren. These facts, taken as true, do not establish
that defendant was not negligent. Our Supreme Court has explained that
“notwithstanding a green traffic light faced the operator of a motor vehicle, [a driver
may] not go forward blindly, but [is] required to use ordinary care, to maintain a
proper lookout, to keep his vehicle under reasonable control, and to drive his vehicle
at a speed reasonable and prudent under existing conditions.” Williams v.
Sossoman’s Funeral Home, Inc., 248 N.C. 524, 529, 103 S.E.2d 714, 718 (1958). With
respect to one’s duty to yield to emergency vehicles, the Court explained that
regardless whether the driver actually hears the siren, if the evidence shows “that
the siren was audibly sounded and that the [driver] was within range where he could
have heard the siren had he been listening, then the [driver] will be deemed to have
heard that which he should have heard and that which a reasonably prudent person
exercising due care would have heard.” Id. at 530, 103 S.E.2d at 718-19.
Whether the issue reaches the jury, however, is a separate question. In
Williams, the Supreme Court held that the trial court properly submitted to the jury
the issue of whether an ambulance had a right of way when entering an intersection
with a red light when there were discrepancies in the evidence with respect to the
siren. Id. at 529, 103 S.E.2d at 718. The Court explained:
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Notwithstanding the unequivocal evidence from
witnesses for defendants that they heard the siren when
the ambulance began its journey and continued to hear it
until the moment of the impact, the equally unequivocal
testimony of the occupants of the Chevrolet and another
witness just a few feet from the intersection that they did
not hear the siren until the ambulance was within a few
feet of the intersection is some evidence that the siren was
not in fact sounded in time to provide a warning to the
plaintiffs.
Id. at 528-29, 103 S.E.2d at 718. Therefore, “the court could not, as a matter of law,
hold that [the ambulance driver] had complied with the terms of the statute and was
entitled to the right of way.” Id. at 529, 103 S.E.2d at 718.
At trial, plaintiff, Ms. Hendrix, and Mr. West testified that they were able to
hear the fire truck’s siren. Mr. West, who was travelling behind defendant’s vehicle
and had his window rolled down, was able to hear the siren from approximately a
block away from the intersection. Ms. Hendrix was able to hear it from the right lane
of the intersection while her windows were rolled up. Mr. Dobbins, the fire truck
driver, testified that the siren was on and that it was designed to be heard from a
minimum distance of 1,000 feet away. Defendant, however, testified that she never
heard the siren at any time, and that she had her windows rolled up and she was
listening to music at a “normal or a little softer” volume. Defendant’s testimony is
some evidence that defendant could not have heard the siren even had she been
listening. As in Williams, this dispute in the evidence prevents the trial court from
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holding as matter of law that defendant breached a duty in violation of N.C. Gen.
Stat. §§ 20-156(b) or 20-157(a).
Nevertheless, defendant still owed “ ‘a minimal duty of care to keep a
reasonable and proper lookout in the direction of travel and see what [she] ought to
[have seen].’ ” Allen v. Efird, 123 N.C. App. 701, 703, 474 S.E.2d 141, 143 (1996)
(quoting Keith v. Polier, 109 N.C. App. 94, 99, 425 S.E.2d 723, 726 (1993)). “The duty
to maintain a proper lookout requires that the operator of a motor vehicle be
reasonably vigilant, and that he or she anticipate the presence of others.” Radford v.
Norris, 74 N.C. App. 87, 89, 327 S.E.2d 620, 622 (1985). Further, “[t]he driver of a
motor vehicle shall not follow another vehicle more closely than is reasonable and
prudent, having due regard for the speed of such vehicles and the traffic upon and
the condition of the highway.” N.C. Gen. Stat. § 20-152(a) (2013).
“ ‘Ordinarily the mere fact of a collision with a vehicle ahead furnishes some
evidence that the following motorist was negligent as to speed, was following too
closely, or failed to keep a proper lookout.’ ” Racine v. Boege, 6 N.C. App. 341, 345,
169 S.E.2d 913, 916 (1969) (quoting Clark v. Scheld, 253 N.C. 732, 737, 117 S.E.2d
838, 842 (1961)). Defendant correctly points out, however, that “[t]his is . . . by no
means an absolute rule to be mechanically applied in every rear-end collision case.”
Id. Nevertheless, in this case, even assuming that the light was green, that defendant
did not hear the fire truck siren, and that plaintiff stopped suddenly, there is no non-
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negligent explanation for why defendant was unable to stop in time to avoid rear-
ending plaintiff. The only inference to be drawn from the evidence is that defendant
was either following plaintiff too closely or she was not paying attention to what was
in front of her.
The undisputed evidence establishes that it was a clear day and defendant was
driving behind plaintiff in the same lane of travel with an unobstructed view of him.
Aerial photographs of the intersection show that there is a large parking lot on the
northeast corner of the Plaza and East 36th Street. In other words, there are no
buildings to obstruct the view of East 36th Street when driving south down the Plaza.
Mr. West testified that he was able to see the fire truck when both he and the fire
truck were about a block away from the intersection. Had defendant been keeping a
proper lookout, she would have been able to see the fire truck and would have been
able to anticipate plaintiff’s stop. Even assuming it was reasonable for her not to
have seen or heard the fire truck approaching, had she kept a reasonable distance
between herself and defendant, she would have been able to stop her vehicle in time
to avoid a collision, as each of the other vehicles at the intersection were able to do.
Because there is no evidence of any other explanation for the collision, we hold that
the trial court did not err in granting plaintiff’s directed verdict as to the issue of
defendant’s negligence. See Griffin, 267 N.C. at 299, 148 S.E.2d at 136 (holding
defendant entitled to nonsuit because plaintiff contributorily negligent where
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Opinion of the Court
plaintiff rear-ended defendant after he stopped suddenly because cars in front of him
did so, explaining that plaintiff was “charged with notice that the operation of each
car is affected by the one in front of it” and “must maintain such distance, keep such
a lookout and operate at such speed, under these conditions, that he can control his
car under ordinarily foreseeable developments,” and where “defendant did so and was
able to stop when it became necessary[, n]o less responsibility was cast upon the
plaintiff”). See also Geschwind v. Hoffman, 727 N.Y.S.2d 155, 156, 285 A.D.2d 448,
449 (N.Y. App. Div. 2001) (holding defendant negligent as matter of law where he
failed to come forward with non-negligent explanation for rear-end collision, and
proffered explanation that preceding vehicle stopped abruptly insufficient as matter
of law to rebut presumption of negligence); Abramowicz v. Roberto, 631 N.Y.S.2d 442,
443, 220 A.D.2d 374, 376 (N.Y. App. Div. 1995) (affirming directed verdict in favor of
plaintiff on issue of defendant’s negligence where defendant rear-ended plaintiff who
was stopped at red light).
We note that plaintiff cites Safron v. Council, ___ N.C. App. ___, 767 S.E.2d
149, 2014 WL 5587033, 2014 N.C. App. LEXIS 1137 (2014) (unpublished), disc. review
denied, ___ N.C. ___, 771 S.E.2d 305 (2015). That case is unpublished and not binding
on this Court. Additionally, the facts of that case are completely different from the
facts of this case. The issue in Safron was whether the defendant violated N.C. Gen.
Stat. § 20-149(a) (2013), when his vehicle struck the plaintiff as she was bicycling on
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Opinion of the Court
the side of the road and the defendant was attempting to overtake and pass her. ___
N.C. App. ___, 767 S.E.2d 149, 2014 WL 5587033, at *2, 2014 N.C. App. LEXIS 1137,
at *4. We do not find Safron instructive in deciding this case.
We hold that there is insufficient evidence that plaintiff acted negligently, and
that the trial court did not err in directing the verdict in favor of plaintiff on the issue
of contributory negligence. Because the same reasoning applies to the order denying
defendant’s motion for a new trial and motion for entry of judgment notwithstanding
the verdict, and defendant advances no new arguments with respect to that order, we
also affirm both the judgment and the order.
AFFIRMED.
Judges STEPHENS and DILLON concur.
Report per Rule 30(e).
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