Scher v. Antonucci , 77 N.C. App. 810 ( 1985 )

336 S.E.2d 434 (1985)

Celia F. SCHER
v.
Charles Michael ANTONUCCI and Rosemary Antonucci.

No. 8526SC324.

Court of Appeals of North Carolina.

November 19, 1985.

DeLaney, Millette & McKnight, P.A. by Steven A. Hockfield, Charlotte, for plaintiff-appellant.

Hedrick, Eatman, Gardner, Feerick & Kincheloe by John F. Morris, Charlotte, for defendants-appellees.

WHICHARD, Judge.

Plaintiff contends the court erred by failing to instruct that following too closely is a violation of N.C.Gen.Stat. 20-152(a) and is negligence per se. We agree.

The trial court has a "duty ... to explain the law and apply it to the evidence on all substantial features of the case." Board of Transportation v. Rand, 299 N.C. 476, 483, 263 S.E.2d 565, 570 (1980); see also G.S. 1A-1, Rule 51(a); Investment Properties v. Norburn, 281 N.C. 191, 197, 188 S.E.2d 342, 346 (1972). The failure to do so constitutes prejudicial error and entitles the aggrieved party to a new trial. Board of Transportation v. Rand, supra; Clifford v. River Bend Plantation, 55 N.C.App. 514, 521, 286 S.E.2d 352, 356 (1982).

N.C.Gen.Stat. 20-152(a) provides that "[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent...." "A violation of this section is negligence per se, and ordinarily the mere fact of a collision with the vehicle ahead furnishes some evidence that the motorist to the rear was not keeping a proper lookout or that he was following too closely." Burnett v. Corbett, 264 N.C. 341, 343, 141 S.E.2d 468, 469 (1965). "[H]owever, the fact that a following vehicle has collided with a preceding one does not compel either of these conclusions, but instead merely raises a question for determination by the jury." Daughtry v. Turnage, 295 N.C. 543, 546, 246 S.E.2d 788, 791 (1978).

Here defendant-husband admitted that his car collided with the rear of plaintiff's car. This admission "permits a legitimate inference by a jury that defendant[-husband] was following plaintiff's automobile ahead more closely than was reasonable and prudent ..." in violation of N.C.Gen. Stat. 20-152(a). Smith v. Rawlins, 253 N.C. 67, 69, 116 S.E.2d 184, 185 (1960).

Citing Royal v. McClure, 244 N.C. 186, 92 S.E.2d 762 (1956), defendants contend N.C.Gen.Stat. 20-152(a) is inapplicable. In Royal plaintiff-administratrix sued the drivers of several cars that stopped on the highway in front of her intestate's car because of heavy smoke and fog. Plaintiff alleged that, by failing to pull off the road after stopping, defendants negligently caused the ensuing collision with her intestate's car, which did not stop in time to avoid the collision. The Supreme Court held that defendants could not be found negligent for following too closely because N.C.Gen.Stat. 20-152(a) had no application to vehicles that were stopped one behind the other on the highway. Royal, 244 N.C. at 189, 92 S.E.2d at 764-65.

Here, however, defendants' car was moving when it struck the rear of plaintiff's car. The accident did not occur, as defendants maintain, while the parties were stopped for a traffic signal, but occurred as traffic began to advance after the signal changed. Plaintiff does not claim that defendant-husband was negligent because he stopped at an improper place as alleged in Royal. Rather, plaintiff asserts that defendant-husband was negligent because he failed to stop a moving vehicle in time to avoid a collision. Thus, Royal does not control and N.C.Gen.Stat. 20-152(a) applies.

Since violation of N.C.Gen.Stat. 20-152(a) bears directly on the issue of defendanthusband's negligence, which is a substantial feature of the case, the court should have declared and explained this section in its charge to the jury. The court also should have explained that violation of this section is negligence per se. See Harris v. Bridges, 59 N.C.App. 195, 198, 296 S.E.2d 299, 301 (1982). It had this duty irrespective of plaintiff's request for special instructions. Investment Properties, 281 N.C. at 197, 188 S.E.2d at 346.

For the reasons stated, we award a new trial. We thus need not consider plaintiff's other argument.

New trial.

EAGLES and COZORT, JJ., concur.