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  "name": "DEBORAH ANN REED, Plaintiff v. CLARA PARKS ABRAHAMSON, JAMES OWEN ABRAHAMSON, KAREN BARWICK and ROBERT LEONARD BARWICK, SR., Defendants",
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    "judges": [
      "Judges EAGLES and LEWIS concur."
    ],
    "parties": [
      "DEBORAH ANN REED, Plaintiff v. CLARA PARKS ABRAHAMSON, JAMES OWEN ABRAHAMSON, KAREN BARWICK and ROBERT LEONARD BARWICK, SR., Defendants"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nDefendants each set forth separate assignments of error for our review and we shall address each individually. First, defendant Barwick contends the trial court erred in denying her motion for directed verdict and judgment notwithstanding the verdict. She bases this assertion on three independent and alternative arguments. Defendant Barwick first claims that there was insufficient evidence to send the issue of her negligence to the jury. In the alternative, she asserts that even if there was competent evidence to establish negligence on the part of defendant Barwick, either plaintiff\u2019s contributory negligence or defendant Abrahamson\u2019s insulating negligence was the proximate cause of plaintiff\u2019s injuries, thereby precluding recovery from defendant Barwick.\nA motion by a defendant for a directed verdict under G.S. 1A-1, Rule 50(a) of the Rules of Civil Procedure tests the legal sufficiency of the evidence to take the case to the jury and support a. verdict for the plaintiff. On such a motion, plaintiff\u2019s evidence must be taken as true and considered in the light most favorable to the plaintiff, giving plaintiff the benefit of every reasonable inference to be drawn therefrom. A directed verdict for the defendant is not properly allowed unless it appears as a matter of law that a recovery cannot be had by the plaintiff upon any view of the facts which the evidence reasonably tends to establish.\nKoonce v. May, 59 N.C. App. 633, 634, 298 S.E.2d 69, 71 (1982). A motion for judgment notwithstanding the verdict is essentially a renewal of an earlier motion for directed verdict, Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 329 S.E.2d 333 (1985), and the same standard will apply.\nIn this case, there was sufficient evidence from which a jury could find defendant Barwick was negligent. N.C. Gen. Stat. \u00a7 20-161(a) provides the following:\nNo person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled portion of any highway or highway bridge outside municipal corporate limits unless the vehicle is disabled to such an extent that it is impossible to avoid stopping and temporarily leaving the vehicle upon the paved or main traveled portion of the highway or highway bridge.\nAccepting arguendo that defendant Barwick\u2019s vehicle was disabled to the extent that it was impossible to avoid stopping in the traveled portion of the highway; and accepting arguendo that she removed her car from the highway as best she could upon its disablement, these circumstances do not settle the question of whether defendant Barwick was entitled, as a matter of law, to be excused from negligence under the disablement exception in N.C. Gen. Stat. \u00a7 20-161(a). The operative circumstances of this case are that defendant Barwick did not only temporarily leave her vehicle in the highway, but also, left it there for approximately seven and one-half hours. This was sufficient to take to the jury the question of whether, in the exercise of reasonable care, defendant Barwick was entitled to be exonerated under the disablement exception. This evidence was also clearly sufficient to allow the jury to determine that the presence of the Barwick vehicle in the traveled portion of the highway was a proximate cause of plaintiffs injuries.\nAs to the question of plaintiff\u2019s alleged contributory negligence, we find no substance to defendant\u2019s position. The evidence at trial certainly did not establish, as a matter of law, that plaintiff was negligent in the operation of her vehicle, and thus this question properly went to and was settled by the jury.\nThe evidence adduced at trial was also sufficient to submit to the jury the question of whether defendant Abrahamson\u2019s intervening negligence was concurring or insulating. Where the evidence presented is of \u201csuch a character that reasonable men could form divergent opinions of its import,\u201d the issues should be submitted to the jury for consideration. Bryant, supra. We therefore find the trial court\u2019s denial of defendant Barwick\u2019s motions to be proper.\nDefendant Barwick next contends that the trial court should have granted her motion for judgment notwithstanding the verdict and motion to set aside the verdict because the damage award was excessive and the evidence was insufficient to support an award of $50,000.00. A motion to set aside a verdict as excessive is addressed to the sound discretion of the trial court and, absent a manifest abuse of discretion, will not be disturbed upon appeal. Worthington v. Bynum, 305 N.C. 478, 290 S.E.2d 599 (1982).\nPlaintiff presented evidence of the continuing nature of the chest and back pain she suffers as a result of the accident. She further presented deposition testimony of her orthopedic surgeon who stated that her injuries were permanent in nature and rated the plaintiff with a 5% permanent partial disability of the upper thoracic spine. Plaintiff brought forth other medical experts whose testimony tended to support her orthopedic surgeon\u2019s diagnosis. Plaintiff also established the necessity for her treatments at Duke University Medical Center Pain Clinic and Medical and Surgical Private Diagnostic Clinics. Dr. Bruno Urban, who treated plaintiff at the Pain Clinic, examined plaintiff and formed a clinical impression that plaintiff\u2019s symptoms were consistent with her accident history. He devised a treatment plan for plaintiff including biofeedback techniques and physical therapy. As part of plaintiff\u2019s treatment at the Pain Clinic, she received services from the Medical and Surgical Private Diagnostic Clinics at Duke. Plaintiff, Dr. Urban, and plaintiff\u2019s physical therapist, testified that they believed plaintiff benefitted from her treatment at the Pain Clinic by reduction of her pain. Plaintiff\u2019s testimony together with that of the medical professionals established sufficient evidence to support the jury\u2019s award of $50,000.00. After reviewing the evidence presented, we find no indication of manifest abuse and we therefore affirm the trial court\u2019s denial of defendant Barwick\u2019s motions.\nIn her first assignment of error, defendant Abrahamson argues that the trial court erred in failing to instruct the jury on the doctrine of sudden emergency. The doctrine of sudden emergency applies when defendant is confronted with \u201can emergency situation not of his own making and requires defendant to act only as a reasonable person, would react to similar emergency circumstances.\u201d Massengill v. Starling, 87 N.C. App. 233, 360 S.E.2d 512 (1987), disc. review denied, 321 N.C. 474, 364 S.E.2d 923 (1988). We find the doctrine of sudden emergency inapplicable based upon the facts before us.\nAn \u201cemergency situation\u201d has been defined by our courts as that which \u201ccompels [defendant] to act instantly to avoid a collision or injury[.]\u201d (Emphasis added.) Schaefer v. Wickstead, 88 N.C. App. 468, 363 S.E.2d 653 (1988) (citing Foy v. Bremson, 286 N.C. 108, 209 S.E.2d 439 (1974)). From defendant Abrahamson\u2019s testimony, it is clear that she did not perceive herself to be in an emergency situation. Inst\u00e9ad, she testified that she saw the Barwick vehicle about ten to fifteen car lengths away, and upon determining that there were no cars approaching from the other direction and that it was safe to proceed, she pulled into the lane of oncoming traffic. Defendant Abrahamson never testified that she could not stop upon finding the Barwick vehicle in her path. Therefore, based on the testimony and facts before us, we find that there was no \u201cemergency\u201d as our cases define that term. This assignment of error is overruled.\nBoth defendants Barwick and Abrahamson contend that the trial court erred in admitting evidence of plaintiff\u2019s medical bills. We find no error in that there was competent evidence to show that the medical treatments were reasonably necessary as rehabilitative measures and that the bills submitted were reasonable in amount.\nBoth defendants also contend that it was reversible error for the court to admit plaintiff\u2019s \u201cpain diary\u201d because it was inadmissible hearsay. Defendants argue that admission of the diary constituted prejudicial error and prevented them from receiving a fair trial.\nUpon reviewing the record before us, we find that the \u201cpain diary\u201d in question was actually part of plaintiff\u2019s medical record and consisted of subjective responses plaintiff provided to Dr. Francis Keith, a psychologist, on a form he had given her, enabling him to effectively evaluate her condition and prescribe treatment. At Dr. Keith\u2019s request, plaintiff kept a daily log of her subjective experience of pain as part of her treatment program. Plaintiff provided this record to Dr. Keith every time she met with him, and it was incorporated as part of her medical record. Clearly, this subjective record of plaintiff\u2019s pain falls squarely into the hearsay exception for Statements for Purposes of Medical Diagnosis or Treatment under Rule 803(4) of the Rules of Evidence. We therefore find this assignment of error to be without merit.\nFinally, defendants assign as error the trial court\u2019s submission of an exhibit to the jury without the consent of all parties. While it is true our Court has held that it is error for the trial court to permit the jury to take exhibits into the jury room and retain them during deliberations without the consent of the parties, such error requires reversal only when the objecting party demonstrates it has suffered resulting prejudice. Robinson v. Seaboard System Railroad, 87 N.C. App. 512, 361 S.E.2d 909 (1987), review denied, 321 N.C. 474, 364 S.E.2d 924 (1988). Defendants have not demonstrated prejudice or the denial of a substantial right based on the trial court\u2019s error. This assignment of error is overruled.\nWe find defendants Barwick\u2019s and Abrahamson\u2019s additional assignments of error to be without merit and therefore do not address them.\nNo error.\nJudges EAGLES and LEWIS concur.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Toms, Reagan & Montgomery, by Frederic E. Toms, for plaintiff-appellee.",
      "Young, Moore, Henderson & Alvis, P.A., by Ralph W. Meekins, for defendants-appellants Clara and James Abrahamson.",
      "Haywood, Denny, Miller, Johnson, Sessoms & Patrick, by E. Elizabeth Lefler and George W. Miller, Jr., for defendants-appellants Karen and Robert Barwick, Sr."
    ],
    "corrections": "",
    "head_matter": "DEBORAH ANN REED, Plaintiff v. CLARA PARKS ABRAHAMSON, JAMES OWEN ABRAHAMSON, KAREN BARWICK and ROBERT LEONARD BARWICK, SR., Defendants\nNo. 9015SC568\n(Filed 15 December 1992)\n1. Automobiles and Other Vehicles \u00a7 531 (NCI4th)\u2014 automobile collision \u2014 -stalled automobile partially on highway\nThe evidence was sufficient to go to the jury on defendant Barwick\u2019s negligence where Barwick was driving on an icy, two-lane road at approximately 8:15 a.m.; she noticed smoke coming from under the hood, pulled to the right of the road, and turned off the engine; unable to restart the car, she obtained assistance and pushed the car as far to the right side of the road as she could; 50 to 60 percent of the car remained on the paved portion of the road; she tried to call a towing service, but none was available; she then left the scene to attend college classes and called another towing service at approximately 5:15 p.m.; in the meantime, plaintiff passed Barwick\u2019s car heading in the same direction; a car passing from plaintiff\u2019s direction could not pass Barwick\u2019s car without crossing the center line and plaintiff stopped her car before pulling around defendant\u2019s car; plaintiff proceeded back along the same road in the opposite direction at about 3:30 p.m.; defendant Abrahamson rounded a sharp curve, confronted Barwick\u2019s car partially obstructing her lane of travel, and steered to the left; and Abrahamson collided with plaintiff. Although defendant Barwick claims that there was insufficient evidence to send the issue of her negligence to the jury, she left her vehicle in the highway for approximately seven and one-half hours. This was sufficient to take to the jury the question of whether, in the exercise of reasonable care, defendant Barwick was entitled to be exonerated under the disablement exception in N.C.G.S. \u00a7 20-161(a).\nAm Jur 2d, Automobiles and Highway Traffic \u00a7 901.\n2. Automobiles and Other Vehicles \u00a7 590 (NCI4th)\u2014 plaintiff striking oncoming vehicle \u2014lane of oncoming vehicle partially blocked \u2014 contributory negligence\nThe question of plaintiff\u2019s contributory negligence properly went to the jury where plaintiff collided with defendant Abrahamson\u2019s vehicle while Abrahamson was swerving around defendant Barwick\u2019s disabled car, which was partially blocking Abrahamson\u2019s lane. The evidence at trial did not establish as a matter of law that plaintiff was negligent.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7 843.\nNegligence of motorist colliding with vehicle approaching in wrong lane. 47 ALR2d 6.\n3. Automobiles and Other Vehicles \u00a7 426 (NCI4th)\u2014 disabled vehicle \u2014negligence of swerving driver \u2014concurring or insulating \u2014 jury issue\nThe evidence at trial was sufficient to submit to the jury the question of whether defendant Abrahamson\u2019s intervening negligence was concurring or insulating where plaintiff collided with defendant Abrahamson\u2019s vehicle while Abrahamson was swerving around defendant Barwick\u2019s disabled car, which was partially blocking Abrahamson\u2019s lane.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 432, 433.\n4. Damages \u00a7 114 (NCI4th)\u2014 automobile accident \u2014damages \u2014 pain \u2014evidence sufficient\nThe evidence was sufficient in an automobile accident case to support the jury\u2019s award of $50,000, and the trial court correctly denied plaintiff\u2019s motion to set aside the verdict, where plaintiff presented evidence of the continuing nature of the chest and back pain she suffers as a result of the accident; her orthopedic surgeon stated that her injuries were permanent and rated plaintiff with a 5\u00b0/o permanent partial disability of the upper thoracic spine; other medical experts supported that diagnosis; and plaintiff established the necessity for her treatments at Duke University Medical Center Pain Clinic and Medical and Surgical Private Diagnostic Clinics.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 914-915, 917.\n5. Automobiles and Other Vehicles \u00a7 767 (NCI4th)\u2014 vehicle stopped on highway \u2014no perception of emergency \u2014instruction on sudden emergency correctly denied\nThe trial court did not err by failing to instruct the jury on the doctrine of sudden emergency in an automobile accident case where defendant Abrahamson rounded a curve and was confronted with defendant Barwick\u2019s disabled car partially in her lane of travel, swerved, and collided with plaintiff where it is clear from defendant Abrahamson\u2019s testimony that she did not perceive herself to be in an emergency situation and she never testified that she could not stop upon finding the Barwick vehicle in her path.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7 420.\nInstructions on sudden emergency in motor vehicle cases. 80 ALR2d 5.\n6. Evidence and Witnesses \u00a7 226 (NCI4th) \u2014 automobile accident\u2014 medical bills \u2014pain diary \u2014admissible\nThe trial court did not err in an automobile accident case by admitting evidence of plaintiff\u2019s medical bills and plaintiff\u2019s pain diary. The medical treatments were reasonably necessary as rehabilitative measures and the bills submitted were reasonable in amount. The pain diary was actually part of plaintiff\u2019s medical record and falls squarely into the hearsay exception for Statements for Purposes of Medical Diagnosis or Treatment under N.C.G.S. \u00a7 8C-1, Rule 803(4).\nAm Jur 2d, Damages \u00a7 198; Evidence \u00a7 496.\n7. Trial \u00a7 13 (NCI3d)\u2014 exhibits \u2014taken into jury room without consent of both parties \u2014no prejudice\nThere was no prejudice in an automobile accident case where the trial court permitted the jury to take exhibits into the jury room and retain them during deliberations without the consent of the parties.\nAm Jur 2d, Trial \u00a7 1691.\nAppeal by defendants from judgment entered 9 October 1986 in Orange County Superior Court by Judge Gordon F. Battle. Heard in the Court of Appeals 17 November 1992.\nPlaintiff brought this personal injury action seeking damages for injuries plaintiff sustained in an automobile accident on 22 January 1985. The record discloses the following facts:\nAt approximately 8:15 a.m. on the morning of the accident, defendant Karen Barwick (hereinafter Barwick) was traveling in a westerly direction on an icy, paved two-lane road when she noticed smoke coming from under her hood. She pulled the car to the right side of the road and turned off the engine. Unable to start the car again, she obtained assistance and pushed the vehicle as far to the right side of the road as she could. The evidence presented tends to establish that 50 to 60 percent of defendant Barwick\u2019s car still remained on the paved portion of the road. Defendant Barwick then tried to call a towing service, but no tow truck was available at that time. Defendant Barwick, a student en route to Chapel Hill, left the scene to attend her classes. After her classes were over, she called another towing service at approximately 5:15 p.m.\nIn the meantime, plaintiff passed defendant Barwick\u2019s parked car heading in a westerly direction. Upon approaching the vehicle, plaintiff stopped her car before pulling out around defendant Barwick\u2019s car. A car passing from plaintiff\u2019s direction could not have passed defendant Barwick\u2019s car without crossing the center line.\nAt about 3:30 p.m. that afternoon, plaintiff proceeded back along the same road in an easterly direction. As plaintiff approached defendant Barwick\u2019s parked car, defendant Clara Parks Abrahamson (hereinafter Abrahamson), who was driving from the opposite direction, rounded a sharp curve in the road and confronted the parked car partially obstructing her lane of travel. Defendant Abrahamson steered to the left to pass defendant Barwick\u2019s car. A collision resulted from defendant Abrahamson\u2019s maneuver. The evidence presented shows that defendant Abrahamson was traveling below the posted speed limit of 45 miles per hour.\nPlaintiff instituted this negligence cause of action against both defendants. The jury returned a verdict for plaintiff against both defendants, jointly and severally, for $50,000.00. From that judgment, defendants appeal.\nToms, Reagan & Montgomery, by Frederic E. Toms, for plaintiff-appellee.\nYoung, Moore, Henderson & Alvis, P.A., by Ralph W. Meekins, for defendants-appellants Clara and James Abrahamson.\nHaywood, Denny, Miller, Johnson, Sessoms & Patrick, by E. Elizabeth Lefler and George W. Miller, Jr., for defendants-appellants Karen and Robert Barwick, Sr."
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