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Green v. Rouse10/18/1994
JOHNSON, Judge.
Plaintiff Annette Green brought a personal injury action against defendant John Rouse, alleging that defendant's negligence proximately caused injuries sustained by plaintiff in an automobile accident occurring on 5 May 1990.
Evidence presented at trial showed the following: Plaintiff was operating a motor vehicle in a southerly direction on N.C. 39 at approximately 6:45 p.m. Plaintiff had a passenger in the front seat, and plaintiff's daughter and another occupant were in the back seat. It had been raining heavily off and on. Plaintiff was operating her vehicle at approximately forty-eight miles per hour in a fifty-five mile per hour zone, and at all times up until the moment of the collision stayed within her lane. Defendant was operating a motor vehicle in a northerly direction on N.C. 39. Plaintiff observed defendant's vehicle as it came out of a curve, approaching her from the opposite direction. After defendant's vehicle came out of the curve, defendant's vehicle crossed the centerline into plaintiff's lane of travel; at this time, it was raining. Plaintiff recalled that once defendant crossed the yellow centerline, she said, "You all sit back, this fool is going to hit me." Plaintiff testified that she "went as far as could get over" and "tried to get out the way" and that she was not sure if she went on the shoulder of the road because the collision happened so quickly, noting also that she believed there was a ditch on the side of the road. The vehicles collided. An investigating officer determined that the point of impact was approximately one foot within the lane of plaintiff's lane of travel and that defendant's vehicle was, at the point of impact, between one foot and eighteen (18) inches across the centerline. Plaintiff's vehicle spun 180 degrees and traveled a total of thirty-eight feet from the point of impact. Defendant's vehicle spun somewhat less than 180 degrees and traveled thirty-one feet from the point of impact. The width of N.C. 39 is twenty-four feet and there was a fourteen foot shoulder on either side of the highway. There were no visible tire marks on the roadway before the impact. Each vehicle was damaged on the left front from the impact. Plaintiff introduced evidence of her injuries which were a result of this accident.
The investigating officer found beer cans in plaintiff's front seat and plaintiff had a blood alcohol level of 0.18% when a blood sample was taken at the hospital two hours after the accident. Based upon the officer's observations of plaintiff and his interview of her, he was of the opinion that she had consumed a sufficient quantity of an impairing substance to appreciably impair both her mental and her physical faculties. In his opinion, the effects of alcohol were obvious and plaintiff was unfit to drive.
At the close of defendant's evidence, plaintiff moved for a directed verdict on the issue of negligence, which the trial court granted. Defendant moved for a directed verdict on the issue of plaintiff's contributory negligence, which the trial court denied. The case was submitted to the jury on the issue of contributory negligence and damages. Plaintiff's attorney objected to the jury instruction on contributory negligence as it related to driving while impaired; the trial court declined to revise the jury instruction. The jury returned a verdict finding plaintiff contributorily negligent. Subsequently, plaintiff filed N.C.R. Civ. P. 50 and 59 motions, which were denied. Plaintiff filed notice of appeal to our Court.
Plaintiff argues on appeal that plaintiff was entitled to a directed verdict on the issue of contributory negligence and to a new trial pursuant to plaintiff's N.C.R. C
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