Bare v. Barrington , 97 N.C. App. 282 ( 1990 )

388 S.E.2d 166 (1990) 97 N.C. App. 282

Janice BARE
v.
Tina Louise BARRINGTON and Vernon Leslie Tyndall.

No. 8920SC656.

Court of Appeals of North Carolina.

February 6, 1990.

Charles W. Collini and Henry T. Drake, Wadesboro, for plaintiff, appellee.

George C. Bower, Jr., and H.P. Taylor, Jr., Wadesboro, for defendant, appellant Tina Louise Barrington.

Griffin, Caldwell, and Helder, P.A. by C. Frank Griffin, Monroe, for defendant, appellant Vernon Leslie Tyndall.

HEDRICK, Chief Judge.

Defendant contends in his second assignment of error argued on appeal that "[t]he trial court erred in refusing to submit the issue of contributory negligence to the jury when there was evidence that the plaintiff knew or should have known that defendant Barrington was intoxicated." Defendants assert that "a sufficient amount of evidence was presented to enable a reasonable person to find by a preponderance of the evidence that the plaintiff knew or should have known that the defendant Barrington was driving under the influence of an intoxicant." We agree.

"It is the duty of the trial judge without any special requests to instruct the jury on the law as it applies to the substantive features of the case arising on the evidence." Millis Constr. Co. v. Fairfield Sapphire Valley, 86 N.C.App. 506, 509, 358 S.E.2d 566, 568 (1987). "This means, among other things, that the judge must submit to the jury such issues as when answered by them will resolve all material controversies between the parties...." Harrison v. McLear, 49 N.C.App. 121, 123, 270 S.E.2d 577, 578 (1980). "The failure to do so constitutes prejudicial error and entitles the aggrieved party to a new trial." Scher v. Antonucci, 77 N.C.App. 810, 811, 336 S.E.2d 434, 435 (1985). Furthermore, in addressing specifically the issue of a passenger's contributory negligence, our Supreme Court has stated:

Ordinarily, the question of the contributory negligence of a guest in an automobile involved in a collision, is for the jury to decide in the light of all the surrounding facts and circumstances.

Dinkins v. Carlton, 255 N.C. 137, 141, 120 S.E.2d 543, 545 (1961), quoting, Samuels v. Bowers, 232 N.C. 149, 153, 59 S.E.2d 787, 789 (1950).

The evidence presented in the instant case tending to show that: (1) plaintiff and defendants had been socializing together at two different bars for approximately three hours prior to the accident; (2) the defendant/driver consumed eight or nine beers during that period according to her own testimony; and (3) the investigating officer found empty beer containers inside the car and detected an odor of alcohol about the defendant/driver immediately following the accident was clearly sufficient to raise an inference from which the jury could find that plaintiff knew or should have known that defendant/driver, Tina Barrington had been drinking, and her ability to operate a motor vehicle was appreciably impaired from having consumed alcohol immediately prior to plaintiff's getting into the automobile when they left the Lakeview Lounge to go to the "pig pickin'". Plaintiff's evidence to the contrary that she did not see Ms. Barrington have anything to drink that evening was for the jury to consider and weigh along with all the other evidence presented. "Discrepancies and contradictions in the evidence ... are to be resolved by the jury, not by the court." Dinkins v. Carlton, supra, 255 N.C. 137, 141, 120 S.E.2d 543, 545 (1961).

We find the issue of plaintiff's contributory negligence to have been clearly raised by the evidence presented at trial, and the trial judge's failure to submit that issue to the jury entitles defendants to a new trial.

Defendants also assign error to the refusal of the trial court to allow the introduction into evidence of the hospital records with respect to the blood tests tending to show the amount of alcohol in defendant Barrington's blood immediately after the accident giving rise to plaintiff's claim. Whether defendant Barrington was driving while impaired from the consumption of alcohol at the time of the accident is clearly relevant in this case, but our Supreme Court has established rules for the admission of evidence regarding tests tending to show the amount of alcohol in a party's blood. In Robinson v. Insurance Co., the Supreme Court said:

... [W]hether or not a blood test is admissible depends upon a showing of compliance with conditions as to relevancy in point of time, tracing and identification of specimen, accuracy of analysis, and qualification of the witness as an expert in the field.

Robinson v. Insurance Co., 255 N.C. 669, 672, 122 S.E.2d 801, 803 (1961).

The Court did not err in refusing to admit the hospital records, as defendants contend, as business records. Defendants did not follow the guidelines set out in Robinson. This assignment of error has no merit.

For the error in not submitting an issue of contributory negligence to the jury, the case is remanded to the Superior Court for a new trial.

New trial.

ARNOLD and WELLS, JJ., concur.