{ "id": 8526810, "name": "JAMES M. WARD, administrator of the Estate of JAMES WILLIAM WARD, Plaintiff v. LARRY McDONALD, Defendant", "name_abbreviation": "Ward v. McDonald", "decision_date": "1990-10-02", "docket_number": "No. 895SC1351", "first_page": "359", "last_page": "366", "citations": [ { "type": "official", "cite": "100 N.C. App. 359" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "29 ALR2d 963", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "weight": 2, "opinion_index": -1 }, { "cite": "213 S.E.2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "348-49" } ], "opinion_index": 0 }, { "cite": "286 N.C. 664", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570074 ], "year": 1975, "pin_cites": [ { "page": "673" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0664-01" ] }, { "cite": "297 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "307 N.C. 267", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561492 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/307/0267-01" ] }, { "cite": "291 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "902" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 373", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524591 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/57/0373-01" ] }, { "cite": "295 S.E.2d 480", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 744", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574149, 8574186, 8574160, 8574203, 8574172 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0744-01", "/nc/306/0744-04", "/nc/306/0744-02", "/nc/306/0744-05", "/nc/306/0744-03" ] }, { "cite": "293 S.E.2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "58 N.C. App. 551", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525518 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/58/0551-01" ] }, { "cite": "42 S.E. 936", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1902, "pin_cites": [ { "page": "937" } ], "opinion_index": 0 }, { "cite": "131 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661532 ], "year": 1902, "pin_cites": [ { "page": "489" } ], "opinion_index": 0, "case_paths": [ "/nc/131/0488-01" ] }, { "cite": "86 S.E. 1050", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1915, "pin_cites": [ { "page": "1051" } ], "opinion_index": 0 }, { "cite": "170 N.C. 365", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659292 ], "year": 1915, "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/nc/170/0365-01" ] }, { "cite": "290 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "602" }, { "page": "604" }, { "page": "602-03" } ], "opinion_index": 0 }, { "cite": "305 N.C. 478", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571152 ], "year": 1982, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0478-01" ] }, { "cite": "328 S.E.2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "74 N.C. App. 543", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525307 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/74/0543-01" ] }, { "cite": "82 S.E.2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "240 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600212 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/240/0353-01" ] }, { "cite": "40 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1946, "pin_cites": [ { "page": "350" } ], "opinion_index": 0 }, { "cite": "226 N.C. 692", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624633 ], "year": 1946, "opinion_index": 0, "case_paths": [ "/nc/226/0692-01" ] }, { "cite": "320 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685063 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0603-01" ] } ], "analysis": { "cardinality": 844, "char_count": 16500, "ocr_confidence": 0.757, "pagerank": { "raw": 2.1077193646190259e-07, "percentile": 0.7627259349869433 }, "sha256": "5b2ac835027145afa3f7e411ae1b5fc63058edb032b994aa54ddf3f023f15b88", "simhash": "1:acb5152a37a04f50", "word_count": 2700 }, "last_updated": "2023-07-14T14:37:10.855162+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge PARKER concurs.", "Judge Phillips concurs in the result." ], "parties": [ "JAMES M. WARD, administrator of the Estate of JAMES WILLIAM WARD, Plaintiff v. LARRY McDONALD, Defendant" ], "opinions": [ { "text": "JOHNSON, Judge.\nThe pertinent facts are as follows: On 13 October 1986 at approximately 9:30 p.m., James Ward (hereinafter \u201cdecedent,\u201d \u201cintestate\u201d or \u201cWard\u201d) was operating a 1981 Yamaha motorcycle in a southerly direction on U.S. Highway 117 approaching its intersection with Centennial Drive in New Hanover County. At the same time, defendant Larry McDonald was operating a 1986 Dodge truck in a northerly direction. Defendant\u2019s truck and Ward\u2019s motorcycle collided just as they approached the intersection of U.S. Highway 117 and Centennial Drive. Ward died as a result of the collision.\nThe testimonial account of James Richard Laughter, Sr., an employee of General Electric, is as follows: While traveling in a southerly direction on U.S. Highway 117 on 13 October 1986, he noticed a motorcycle behind him that was, in his opinion, traveling between 35 and 40 m.p.h. As he approached the turn lane for the southernmost entrance to the General Electric Plant outside of Wilmington, he slowed his vehicle to approximately 20 to 25 m.p.h. As he got midway down the turn lane, the motorcyle passed him going approximately 25 to 30 m.p.h. The motorcyle then proceeded down U.S. Highway 117 in a normal manner. At this time, the defendant\u2019s vehicle was stopped at the intersection waiting to turn left onto Centennial Drive. As the motorcycle proceeded in its lane of travel, he noticed that the traffic signal for traffic proceeding in a southerly direction was green. When the motorcycle reached a point approximately 20 feet from the intersection, defendant\u2019s truck turned into the path and struck the left side of James Ward\u2019s motorcycle. As a result of the collision, Ward was thrown approximately 41 feet. Although Ward\u2019s headlight was illuminated and his taillights were on, Laughter saw no brake lights come on the motorcycle as it entered the intersection.\nAt the time of the collision, Laughter was approximately 15 to 20 feet behind another car in the right-hand turn lane. The other car, driven by Kenneth Kornegay, was approximately 7 to 8 car lengths from the intersection when the accident occurred. Testimony elicited from Kornegay confirmed Laughter\u2019s statement that the signal for traffic proceeding south was green. He further testified that defendant\u2019s truck was stopped at the signal for northbound traffic, with his left-turn signal on. Kornegay did not, however, see the accident.\nTrooper Howard L. Higgins of the North Carolina Highway Patrol testified that there were no skid marks at the point of impact which occurred in the middle of the southbound lane on U.S. Highway 117. As a result of his investigation, Trooper Higgins charged defendant with failing to yield the right of way and death by motor vehicle.\nAt trial, the parties stipulated, and the judge so instructed, that the total of the medical and funeral bills incurred by the plaintiff was $8,350.42.\nOn appeal, plaintiff brings forth six Assignments of Error. Defendant brings forth an additional three Assignments of Error on cross-appeal. Inasmuch as there is an appeal and a cross-appeal,' we will first address the legal questions raised by plaintiff we believe to be decisive. We then will discuss the questions raised by defendant on cross-appeal.\nPlaintiff\u2019s Appeal\nFirst, plaintiff contends that the trial judge committed prejudicial error in remarking to the jury about the need to shorten the length of the trial. We disagree.\nUnquestionably, G.S. \u00a7 1A-1, Rule 51(a) provides that:\n... a judge shall not give an opinion as to whether or not a fact is fully or sufficiently proved and shall not be required to state, summarize or recapitulate the evidence, or to explain the application of the law to the evidence.\nIn the instances where a plaintiff alleges that he has been deprived of his right to a fair trial by improper remarks in the hearing of the jury, we must first determine whether the trial judge\u2019s remarks, in light of the circumstances under which they were made, were improper. We must then determine whether such remarks were prejudicial. State v. King, 311 N.C. 603, 320 S.E.2d 1 (1984).\nAfter considering the complained of remarks made by the trial judge and the circumstances in which they were made, we find them to be something other than opinions. Assuming, arguendo, that the remarks were improper, we nonetheless find them to be lacking in prejudice. Accordingly, the trial court properly denied plaintiff\u2019s motion for a new trial. This assignment is overruled.\nSecond, plaintiff contends that the trial court erred in admitting testimony that the decedent did not have a motorcycle endorsement at the time of the accident. We disagree.\nG.S. \u00a7 20-7(al) provides that\n[n]o operator\u2019s or chauffeur\u2019s license issued on or after October 1, 1979 shall authorize the licensee to operate a motorcycle unless the license has been appropriately endorsed by the Division to indicate that the licensee has passed special road and written (or oral) tests demonstrating competence to operate a motorcycle. . . .\nA violation of the above-quoted statute is negligence per se. See Hoke v. Greyhound Corporation, 226 N.C. 692, 40 S.E.2d 345 (1946).\nAccording to the uniform decisions of this Court, the violation of a statute imposing a rule of conduct in the operation of a motor vehicle and enacted in the interest of safety has been held to constitute negligence per se, but before the person claiming damages for injuries sustained can be permitted to recover he must show a causal connection between the injury received and the disregard of the statutory mandate. (Emphasis in original.)\nAldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331 (1954). \"What is the proximate cause of an injury is ordinarily a question for the jury to decide.\u201d Hoke, supra at 698, 40 S.E.2d at 350. It is to be determined in light of the surrounding circumstances. Id.\nUnder the facts in the instant case, it was clearly negligence per se for the decedent, who lacked a motorcycle endorsement at the time of the accident, to have been driving a motorcycle in this State. Such negligence, however, is not actionable unless his failure to have the proper endorsement was either the proximate cause or one of the proximate causes of his death. Id. Having reviewed the complained of evidence, we find that the testimony of Trooper Higgins that Ward did not have a motorcycle endorsement at the time of the accident was offered on the issue of contributory negligence. While the issue of whether the decedent was contributorily negligent was not submitted to the jury, the jury was subsequently instructed not to consider this affirmative defense. In the absence of evidence showing that the jury acted contrary to the court\u2019s instructions, we find no prejudicial effect of Trooper Higgins\u2019 testimony. This assignment is overruled.\nLast, plaintiff contends that the trial court abused its discretion in failing to award plaintiff a new trial on the issue of damages. Based upon the applicable standard of appellate review and the evidence presented at trial, we find no abuse of discretion.\nThe standard for appellate review of a trial court\u2019s discretionary ruling either granting or denying a motion to set aside a verdict and order of a new trial is prohibitive. Pearce v. Fletcher, 74 N.C. App. 543, 328 S.E.2d 889 (1985). As previously set forth, the inherent and traditional principles provide that appellate review \u201cis strictly limited to the determination of whether the record affirmatively demonstrates a manifest abuse of discretion by the judge.\u201d Worthington v. Bynum, 305 N.C. 478, 482, 290 S.E.2d 599, 602 (1982). \u201c[A] manifest abuse of discretion must be made to appear from the record as a whole with the party alleging the existence of an abuse bearing the heavy burden of proof.\u201d Id. at 484-85, 290 S.E.2d at 604. Realizing that such principles are well entrenched, we nevertheless find it necessary to reaffirm settled law.\nWhile the necessity for exercising this discretion, in any given case, is not to be determined by the mere inclination of the judge, but by a sound and enlightened judgment in an effort to attain the end of all law, namely, the doing of even and exact justice, we will yet not supervise it, except, perhaps, in extreme circumstances, not at all likely to arise; and it is therefore practically unlimited. Settee v. Electric Ry., 170 N.C. 365, 367, 86 S.E. 1050, 1051 (1915).\nThe power of the court to set aside the verdict as a matter of discretion has always been inherent, and is necessary to the proper administration of justice. The judge is not a mere moderator, but is an integral part of the trial, and when he perceives that justice has not been done it is his duty to set aside the verdict. His discretion to do so is not limited to cases in which there has been a miscarriage of justice by reason of the verdict having been against the weight of the evidence. Bird v. Bradburn, 131 N.C. 488, 489, 42 S.E. 936, 937 (1902).\nWorthington v. Bynum, supra at 482-83, 290 S.E.2d at 602-03.\nIn North Carolina, the recovery for a wrongful death action is based largely on the losses suffered by the individual beneficiaries. Scallon v. Hooper, 58 N.C. App. 551, 293 S.E.2d 843, cert. denied, 306 N.C. 744, 295 S.E.2d 480 (1982). Our wrongful death statute was designed by the General Assembly to compensate, as fully as possible, persons for the loss of their decedent. Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, aff\u2019d, 307 N.C. 267, 297 S.E.2d 397 (1982). As articulated in G.S. \u00a7 28A-18-2(b), damages recoverable for death by wrongful act include the following:\n(1) Expenses for care, treatment and hospitalization incident to the injury resulting in death;\n(2) Compensation for pain and suffering of the decedent;\n(3) The reasonable funeral expenses of the decedent;\n(4) The present monetary value of the decedent to the persons entitled to receive the damages recovered, including but not limited to compensation for the loss of the reasonably expected:\na. Net income of the decedent,\nb. Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered,\nc. Society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered;\n(5) Such punitive damages as the decedent could have recovered had he survived, and punitive damages for wrongfully causing the death of the decedent through maliciousness, willful or wanton injury, or gross negligence;\n(6) Nominal damages when the jury so finds.\nWe note that\n[t]he present monetary value of the decedent to the persons entitled to receive the damages will usually defy any precise mathematical computation. [Citations omitted.] Therefore, the assessment of damages must, to a large extent, he left to the good sense and fair judgment of the jury . . . The fact that the full extent of the damages must be a matter of some speculation is no ground for refusing all damages. [Citations omitted.]... \u201cThe damages in any wrongful death action are to some extent uncertain and speculative. A jury may indulge in such speculation where it is necessary and there are sufficient facts to support speculation.\u201d (Citations omitted.) (Emphasis added.)\nBeck v. Carolina Power & Light Co., supra at 381-82, 291 S.E.2d at 902, quoting Brown v. Moore, 286 N.C. 664, 673, 213 S.E.2d 342, 348-49 (1975). Guided by these principles, we turn to the instant case.\nPlaintiff presented the testimony of, inter alios, Retha Ward, the decedent\u2019s mother, and Robert Bunting, an economist, in an attempt to show \u201cthe present monetary value\u201d of Ward to his parents. The jury, as the sole judges of whether the plaintiff sustained damages, was authorized to award actual damages or, if they found none, to award nominal damages. In so doing, the jury determined the relative weight and credibility to be given to the testimony of each witness and found actual damages. We are unable to adopt plaintiff\u2019s contention that the jury arbitrarily ignored his proof of damages. Thus, we find no abuse of discretion. This assignment is overruled. Accordingly, the trial court\u2019s order denying plaintiff\u2019s motion for a new trial is affirmed.\nDEFENDANT\u2019S CROSS-APPEAL\nWe note at the outset that defendant\u2019s cross-appeal is conditioned upon the outcome of plaintiff\u2019s appeal. In view of the fact that this Court has affirmed the trial court\u2019s order denying plaintiff\u2019s motion for a new trial, defendant\u2019s appeal is dismissed.\nIn sum,\nPlaintiff\u2019s appeal is affirmed.\nDefendant\u2019s cross-appeal is dismissed.\nAffirmed; dismissed.\nJudge PARKER concurs.\nJudge Phillips concurs in the result.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Shipman & Lea, by Gary K. Shipman, for plaintiff-appellant.", "Murchison, Taylor, Kendrick, Gibson & Davenport, by Vaiden P. Kendrick and John L. Coble, for defendant-appellee." ], "corrections": "", "head_matter": "JAMES M. WARD, administrator of the Estate of JAMES WILLIAM WARD, Plaintiff v. LARRY McDONALD, Defendant\nNo. 895SC1351\n(Filed 2 October 1990)\n1. Trial \u00a7 10.1 (NCI3d)\u2014 remark by court \u2014 need to shorten trial-no improper opinion\nThe trial court did not improperly express an opinion in remarking to the jury about the need to shorten the length of this wrongful death trial. N.C.G.S. \u00a7 1A-1, Rule 51(a).\nAm Jur 2d, Trial \u00a7\u00a7 91, 1065, 1066.\n2. Automobiles and Other Vehicles \u00a7 474 (NCI4th)\u2014 driver\u2019s license \u2014 absence of motorcycle endorsement \u2014 negligence per se \u2014 proximate cause\nIt was negligence per se for the decedent to operate a motorcycle in this state without a motorcycle endorsement on his driver\u2019s license. However, such negligence was not actionable unless his failure to have the proper endorsement was a proximate cause of his death.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 625, 626, 1023.\nLack of proper automobile registration or operator\u2019s license as evidence of operator\u2019s negligence. 29 ALR2d 963.\n3. Automobiles and Other Vehicles \u00a7\u00a7 37, 474 (NCI4th)\u2014 driver\u2019s license \u2014 absence of motorcycle endorsement \u2014 testimony not prejudicial\nPlaintiff was not prejudiced by a highway patrolman\u2019s testimony in a wrongful death case that plaintiff\u2019s intestate, who was operating a motorcycle, did not have a motorcycle endorsement on his driver\u2019s license at the time of the accident where the testimony was offered on the issue of contributory negligence, and the jury was instructed not to consider that issue.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 625, 626, 1023.\nLack of proper automobile registration or operator\u2019s license as evidence of operator\u2019s negligence. 29 ALR2d 963.\n4. Trial \u00a7 52.1 (NCI3d)\u2014 denial of new trial on damages issue\nThe trial court did not abuse its discretion in denying plaintiff\u2019s motion for a new trial on the issue of damages in a wrongful death action where the jury awarded plaintiff the amount stipulated by the parties as the total medical and funeral expenses incurred by plaintiff because of his intestate\u2019s death.\nAm Jur 2d, Damages \u00a7\u00a7 1029, 1031; New Trial \u00a7\u00a7 394, 403, 408.\nAPPEAL by plaintiff and cross-appeal by defendant from judgment entered 3 July 1989 by Judge Napoleon B. Barefoot in New HANOVER County Superior Court. Heard in the Coui;t of Appeals 21 August 1990.\nPlaintiff, as Administrator of the Estate of James William Ward, instituted this civil action against defendant on 13 August 1987 to recover damages for the alleged wrongful death of James William Ward, who died 13 October 1986 as a result of a collision in New Hanover County, North Carolina. Defendant thereafter filed an answer denying the material allegations of plaintiff\u2019s complaint. On 11 November 1987, defendant filed an amendment to his answer alleging that plaintiff\u2019s intestate was contributorily negligent. On 30 November 1987, plaintiff filed a reply, denying the same, and seeking sanctions against defendant pursuant to G.S. \u00a7 1A-1, Rule 11. Plaintiff\u2019s motion for sanctions was subsequently denied by Judge Bradford Tillery.\nOn 18 May 1989, defendant filed for, but was denied, a motion for leave to supplement his answer by Judge Napoleon Barefoot.\nThe matter thereafter came on for trial on 19 June 1989. The jury returned a verdict reflecting that the plaintiff\u2019s intestate was killed by the negligence of the defendant and awarded plaintiff $8,350.42.\nOn 30 June 1989, plaintiff filed a motion for a new trial on the issue of damages pursuant to G.S. \u00a7 1A-1, Rule 59. The motion was, however, denied on 14 July 1989. Both the plaintiff and the defendant appeal the 3 July 1989 judgment.\nShipman & Lea, by Gary K. Shipman, for plaintiff-appellant.\nMurchison, Taylor, Kendrick, Gibson & Davenport, by Vaiden P. Kendrick and John L. Coble, for defendant-appellee." }, "file_name": "0359-01", "first_page_order": 391, "last_page_order": 398 }