{ "id": 6788045, "name": "JAMES C. LLOYD, III, Plaintiff v. NORFOLK SOUTHERN RAILWAY COMPANY, ERGON TRUCKING, INC. AND JEREMY RYAN TUCKER, Defendants", "name_abbreviation": "Lloyd v. Norfolk Southern Railway Co.", "decision_date": "2013-12-17", "docket_number": "No. COA13-379", "first_page": "368", "last_page": "376", "citations": [ { "type": "official", "cite": "231 N.C. App. 368" } ], "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": "645 S.E.2d 839", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638635 ], "year": 2007, "pin_cites": [ { "page": "846" } ], "opinion_index": 0, "case_paths": [ "/se2d/645/0839-01" ] }, { "cite": "654 S.E.2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640082 ], "year": 2007, "pin_cites": [ { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/se2d/654/0007-01" ] }, { "cite": "427 S.E.2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "136" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 314", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525369 ], "year": 1993, "pin_cites": [ { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0314-01" ] }, { "cite": "159 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "365", "parenthetical": "holding that primary and secondary liability between defendants exists only when: (1) they are jointly and severally hable to the plaintiff; and (2) either (a) one has been passively negligent but is exposed to liability through the active negligence of the other or (b" } ], "opinion_index": 0 }, { "cite": "273 N.C. 59", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574410 ], "year": 1968, "pin_cites": [ { "page": "62", "parenthetical": "holding that primary and secondary liability between defendants exists only when: (1) they are jointly and severally hable to the plaintiff; and (2) either (a" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0059-01" ] }, { "cite": "179 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559876 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0153-01" ] }, { "cite": "411 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "138", "parenthetical": "citing Kelly v. Int'l Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971)" } ], "opinion_index": 0 }, { "cite": "330 N.C. 314", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509560 ], "year": 1991, "pin_cites": [ { "page": "322", "parenthetical": "citing Kelly v. Int'l Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971)" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0314-01" ] }, { "cite": "184 N.C. App. 230", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8185309 ], "year": 2007, "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/nc-app/184/0230-01" ] }, { "cite": "721 S.E.2d 699", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "702", "parenthetical": "quoting Venters v. Albritton, 184 N.C. App. 230, 240, 645 S.E.2d 839, 846 (2007); see also Kenneth S. Broun, Brandis & Broun on North Carolina Evidence \u00a7 22 (7th ed. 2011" } ], "opinion_index": 0 }, { "cite": "161 L. 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AND JEREMY RYAN TUCKER, Defendants" ], "opinions": [ { "text": "STEELMAN, Judge.\nWhere defendants Ergon and Tucker failed to show that plaintiff unreasonably failed to mitigate his damages, the trial court correctly decided their motion for judgment notwithstanding the verdict. Where Ergon and Tucker failed to make a timely objection to the evidence now complained of, and based upon the evidence presented, the damages awarded by the jury to the plaintiff were not excessive; the trial court correctly denied their motion for a new trial. Finally, where the jury found Ergon and Tucker to be negligent, and that Norfolk Southern was not negligent, Ergon and Tucker\u2019s appeal of the trial court\u2019s ruling granting directed verdicts for Norfolk Southern is moot.\nI. Factual and Procedural History\nOn 11 July 2008, James C. Lloyd (Lloyd) was an engineer on a Norfolk Southern Railroad Company (Norfolk Southern) train traveling from Greenville, South Carolina to the Linwood Yard near Salisbury, North Carolina. Jeremy Ryan Tucker (Tucker) was operating a truck for his employer, Ergon Trucking, Inc. (Ergon). This truck was towing a tanker filled with mineral oil to the Duke Energy substation in Charlotte, North Carolina.\nTucker drove his tractor and tanker onto a private road owned by Duke Energy. This road crossed railroad tracks owned, constructed, and maintained by Norfolk Southern.\nWhile Tucker\u2019s vehicle was crossing the railroad tracks, the vehicle ran off of the paved portion of the road and became stuck on the railroad track. After attempting for several minutes to get the vehicle free, Tucker heard the whistle of an oncoming train. He tried frantically to free his tractor from the tracks, but was unsuccessful. He was still in the tractor when it was struck by the train.\nLloyd attempted to stop the train but was unable to do so because Tucker\u2019s vehicle was not visible from a distance that would have allowed him to stop the train. The resulting collision caused an explosion and a large fire. The train eventually came to a stop one mile beyond the crossing. Lloyd suffered serious injuries from the collision.\nOn 27 June 2011, Lloyd filed a complaint against Norfolk Southern, Tucker, and Ergon seeking damages for personal injuries. He also sued Norfolk Southern, pursuant to the Federal Employers Liability Act, 45 U.S.C. \u00a7 51 et seq, for not providing a safe place to work.\nLloyd also alleged that he was injured as a result of the negligence of Tucker, which was imputed to Ergon.\nNorfolk Southern filed a crossclaim against Ergon and Tucker seeking monetary compensation for damage to its equipment and tracks, and for indemnity or contribution as to Lloyd\u2019s claims. Ergon and Tucker crossclaimed against Norfolk Southern seeking damages for the loss of Ergon\u2019s vehicle as well as for indemnity or contribution as to Lloyd\u2019s claim.\nThe case was tried before Judge Caldwell and a jury in the Superior Court of Mecklenburg County from 9 April 2012 through 19 April 2012. The motions of Ergon and Tucker to dismiss at the close of plaintiff\u2019s evidence and the close of all of the evidence were denied. The trial court granted Norfolk Southern\u2019s motions for a directed verdict as to: (1) crossclaims of Ergon and Tucker for indemnity and contribution against Norfolk Southern, and 2) Norfolk Southern\u2019s claim for indemnity against Ergon and Tucker.\nOn 19 April 2012, the jury returned the following verdict: (1) Lloyd was injured by the negligence of Ergon and Tucker; (2) Lloyd was not injured by the negligence of Norfolk Southern; (3) Lloyd was entitled to recover $865,175 for personal injury; (4) Norfolk Southern was damaged by the negligence of Ergon and Tucker; (5) Norfolk Southern was entitled to recover $177,600 in damages; (6) Ergon was not damaged by the negligence of Norfolk Southern.\nOn 30 April 2012, Ergon and Tucker filed a Motion for Judgment Notwithstanding the Verdict (JNOV) and a motion for a new trial. On 11 June 2012, the trial court denied both of these motions.\nII. Denial of Motion for Judgment Notwithstanding the Verdict\nIn their first argument, Ergon and Tucker contend that the trial court erred in denying their motion for judgment notwithstanding the verdict. We disagree.\nA. Standard of Review\nThe standard of review in North Carolina on motions for JNOV is de novo. See Hodgson Constr., Inc. v. Howard, 187 N.C. App. 408, 412, 654 S.E.2d 7, 11 (2007). \u201cOn appeal the standard of review for a JNOV is the same as that for a directed verdict, that is whether the evidence was sufficient to go to the jury.\u201d Tomika Invs., Inc. v. Macedonia True Vine Pentecostal Holiness Church of God, Inc., 136 N.C. App. 493, 498-99, 524 S.E.2d 591, 595 (2000).\nB. Analysis\nErgon and Tucker\u2019s main argument is that Lloyd failed to adequately prove his damages and failed to mitigate his damages following the accident. Ergon and Tucker argue that Lloyd, at the time of trial, had not gone back to work since the accident even though he had been given the opportunity. They contend that Norfolk Southern had offered to assist Lloyd with his vocational rehabilitation in order to help find him new employment. Ergon and Tucker assert that because Lloyd had not taken reasonable steps to mitigate his damages, the trial court improperly denied its JNOV motion.\nUnder the law in North Carolina, an injured plaintiff must exercise reasonable care and diligence to avoid or lessen the consequences of the defendant\u2019s wrong. If plaintiff fails to mitigate his damages, \u201cfor any part of the loss incident to such failure, no recovery can be had.\u201d Miller v. Miller, 273 N.C. 228, 239, 160 S.E.2d 65, 73-74 (1968); see also Snead v. Hollman, 101 N.C. App. 462, 466, 400 S.E.2d 91, 94 (1991). The burden was on Ergon and Tucker to demonstrate that Lloyd breached his duty to mitigate his damages. See First Nat\u2019l Pictures Distrib. Corp. v. Sewell, 205 N.C. 359, 360, 171 S.E. 354, 355 (1933); Thermal Design, Inc. v. M&M Builders, Inc., 207 N.C. App. 79, 89, 698 S.E.2d 516, 523-24 (2010).\nErgon and Tucker were required to demonstrate that Lloyd unreasonably failed to mitigate his damages. Ergon and Tucker have contended that Lloyd refused to consider educational or employment opportunities offered by Norfolk Southern that were not in his current line of work, and that he did not attempt to find any work after the accident.\nHowever, as of the time of trial, Lloyd had not been medically cleared to return to work because he was suffering from posttraumatic stress disorder (PTSD) caused by the accident. At trial, Lloyd testified that he had not pursued other employment opportunities because he had not been medically cleared to return to work. All of the medical experts, including Ergon and Tucker\u2019s expert witness, acknowledged ait trial that Lloyd may never be able to return to work because of his injuries. The evidence at trial showed that Lloyd was participating in his prescribed rehabilitation and had followed all of his personal doctors\u2019 orders in an effort to expedite his recovery.\nThe evidence shows that plaintiff acted reasonably concerning the medical advice that he was given. See Radford v. Norris, 63 N.C. App. 501, 502-03, 305 S.E.2d 64, 65 (1983), disc. rev. denied, 314 N.C. 117, 332 S.E.2d 483 (1985); see also Snead v. Holloman, 101 N.C. App. 462, 400 S.E.2d 91 (1991). There was evidence that Lloyd took reasonable steps to return to work presented at trial. Ergon and Tucker\u2019s expert witness acknowledged that Lloyd had done everything that he was asked to do by his doctors. Therefore, Ergon and Tucker have not met their burden demonstrating that Lloyd acted unreasonably in mitigating his damages. The evidence presented at trial shows that the issue of mitigation was properly left for the jury.\nThis argument is without merit.\nIII. Denial of Motion for a New Trial\nOn their second argument, Ergon and Tucker contend that the trial court erred in denying their motion for a new trial. We disagree.\nA Standard of Review\n\u201c[A]n appellate court\u2019s review of a trial judge\u2019s discretionary ruling either granting or denying a motion to set aside a verdict and order a new trial is 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]n appellate court should not disturb a discretionary Rule 59 order unless it is reasonably convinced by the cold record that the trial judge\u2019s ruling probably amounted to a substantial miscarriage of justice.\u201d Worthington, 305 N.C. at 487, 290 S.E.2d at 605. We review this issue for abuse of discretion.\nB. Analysis\nErgon and Tucker moved for a new trial on the ground that the damages awarded were excessive pursuant to N.C. R. Civ. P 59(a)(6), and on the ground that they were prejudiced by the improper admission of evidence pursuant to N.C. R. Civ. P. 59(a)(8).\nErgon and Tucker contend that the trial court improperly admitted into evidence an investigative report concerning the accident that was prepared by Crawford and Company for either Ergon or Ergon\u2019s liability insurance carrier. Ergon called Michael Andrew Sutton as an expert witness in accident reconstruction. On cross-examination, counsel for Norfolk Southern questioned Sutton as follows:\nQ: Let me ask you about Norfolk Southern Exhibit 18-1. It\u2019s a page out of the investigator\u2019s report. You relied on his report in doing your work in this case; right?\nA: Yes, I did review it....\nQ: Let me direct you to another page in his report.... Norfolk Southern Exhibit 18-2, where he states plainly in his report based on his investigation on behalf of Ergon Trucking--\nMr. Wettermark (counsel for Lloyd): If I may interpose-\nThe Court: Yes, sir.\nMr. Wettermark: - an objection.\nThe Court: What\u2019s the basis for your objection?\nMr. Wettermark: It contains hearsay opinions by a third party that haven\u2019t been qualified.\nThe Court: Do you want to be heard?\nMr. Gordon (Counsel for Norfolk Southern): He relied on this man\u2019s report for his opinions in this case.\nThe Court: Your objection is overruled.\nQ: This man says right there in his report, \u201cThis is the investigator for Ergon Trucking. Based on our investigation to date, we find no negligence on the part of Norfolk Southern.\u201d That\u2019s what he wrote; right?\nA: Yes, that was the conclusion or that\u2019s what he wrote in his report based on his investigation.\nThe two exhibits were not offered as evidence at this time.\nOn the next day of trial, counsel for Ergon and Tucker objected to the admission of these exhibits into evidence. The basis of this objection by Ergon was that under Rule 403 of the North Carolina Rules of Evidence, the \u201cprejudicial qualities\u201d of the two documents \u201cfar exceeds any probative value.\u201d In arguing this objection, counsel noted that \u201ccertainly Mr. Sutton said that they were not the basis for the action, the claims towards Ergon in this case nor of the plaintiff in this case.\u201d Counsel for plaintiff objected under Rule 702. The trial court held that Sutton \u201cconsidered it in formulating his opinion\u201d and that \u201cthe probative value of this evidence is not substantially outweighed by prejudice\u201d and overruled the objection of Ergon, Tucker, and Lloyd. Norfolk Southern\u2019s Exhibits 18-1 and 18-2 were subsequently received into evidence.\nOn appeal, Ergon and Tucker couch their argument in terms of the alleged erroneous admission of the reports. However, their only complaint about the report is limited to the statement involving the lack of evidence concerning the negligence of Norfolk Southern. This testimony was originally elicited during the cross-examination of Sutton by Norfolk Southern. While Lloyd objected to this testimony, Ergon and Tucker did not. Where one party objects to testimony at trial, that objection does not inure to the benefit of another party for purposes of preserving that objection for appellate review. State v. Bell, 359 N.C. 1, 27, 603 S.E.2d 93, 111 (2004), cert. denied 544 U.S. 1052, 125 S. Ct. 2299, 161 L. Ed. 2d 1094 (2005). In Bell, the defendant was tried capitally for murder, along with his codefendant, Sims. At trial, Sims objected to certain evidence, but Bell did not. On appeal, Bell sought to assign error to the admission of this evidence. The Supreme Court cited Rule 10(b) (1) of the Rule of Appellate Procedure:\nin order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.\nBell at 27, 603 S.E.2d at 111, citing N.C. R. App. P. 10(b)(1). Bell held that:\nCodefendant Sims made an objection to the testimony, arguing that it was repetitive and noncorroborative. Defendant never separately objected or joined in codefendant Sims\u2019 objection, thereby waiving his right to appellate review.\nBell at 27, 603 S.E.2d at 111.\nWe hold that Ergon and Tucker waived any objection to Sutton\u2019s testimony by failing to raise their own objection, or not joining in Lloyd\u2019s objection.\nThis holding is also dispositive of Ergon and Tucker\u2019s appeal of the overruling of their objection to Norfolk Southern\u2019s Exhibits 18-1 and 18-2. Their sole complaint on appeal is the language elicited during Sutton\u2019s cross-examination. \u201c [I]t is the well-established rule that the admission of evidence without objection waives any prior or subsequent objection to the admission of evidence of a similar character.\u201d J.T. Russell & Sons, Inc. v. Silver Birch Pond L.L.C., N.C. App. _, _, 721 S.E.2d 699, 702 (2011) (quoting Venters v. Albritton, 184 N.C. App. 230, 240, 645 S.E.2d 839, 846 (2007); see also Kenneth S. Broun, Brandis & Broun on North Carolina Evidence \u00a7 22 (7th ed. 2011).\nWe further note that even assuming Ergon and Lloyd preserved this issue for appellate review, we discern no abuse of discretion in the trial court\u2019s overruling of the objections under either Rule 403 or 702.\nAs to Ergon and Tucker\u2019s argument that the damages awarded by the jury to Lloyd were excessive, we find no merit in that argument. The total economic loss claimed by Lloyd was $765,206. This figure consisted of the amount of damages sustained by Lloyd from the date of the accident through the date of trial ($224,410) which consisted of medical bills and lost wages, as well as the amount of Lloyd\u2019s projected future lost wages ($441,643) and future lost health insurance ($99,153). The jury awarded Lloyd $865,175. We have already held that Lloyd did not fail to mitigate his damages. The jury was thus not obliged to reduce Lloyd\u2019s damages. The jury\u2019s award of damages was not excessive and does not warrant a new trial. The trial court did not abuse its discretion in denying the motion of Ergon and Tucker for a new trial based upon the amount of damages awarded.\nIV. Directed Verdict Issues as to Crossclaims\nOn their third argument on appeal, Ergon and Tucker argue that the trial court improperly dismissed Ergon and Tucker\u2019s claims for indemnity and contribution against Norfolk Southern, and improperly granted Norfolk Southern\u2019s claim for indemnity as to Ergon and Tucker. We disagree.\nA. Standard of Review\nThe standard of review for a directed verdict is de novo. See Davis v. Dennis Lilly Co., 330 N.C. 314, 322, 411 S.E.2d 133, 138 (1991) (citing Kelly v. Int\u2019l Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971))(\u201cThe standard of review of directed verdict is whether the evidence, taken in the light most favorable to the non-moving party, is sufficient as a matter of law to be submitted to the jury.\u201d).\nB. Analysis\nErgon and Tucker argue that the trial court erroneously ruled that any negligence of Norfolk Southern was passive and that Ergon and Tucker\u2019s negligence was active. Ergon and Tucker intend that this issue should have been decided by the jury and not by the trial court.\nBecause of the verdicts returned by the jury, this question is moot. The jury found that Ergon and Tucker were negligent, and that Norfolk Southern was not negligent. Thus, the authority for prorating the issue of negligence is moot. See Hendricks v. Leslie Fay, Inc., 273 N.C. 59, 62, 159 S.E.2d 362, 365 (1968) (holding that primary and secondary liability between defendants exists only when: (1) they are jointly and severally hable to the plaintiff; and (2) either (a) one has been passively negligent but is exposed to liability through the active negligence of the other or (b) one alone has done the act which produced the injury but the other is derivatively liable for the negligence of the former); see also Simpson v. Halteras Island Gallery Restaurant, Inc., 109 N.C. App. 314, 322, 427 S.E.2d 131, 136 (1993). The jury determined Norfolk Southern was not negligent which eliminates any issue concerning passive or active negligence. This issue is without merit, and the trial court\u2019s decision is affirmed.\nNO ERROR.\nJudges HUNTER, ROBERT C., and BRYANT concur.\n. We note that effective 1 October 2009, Rule 10 was amended, making the former section (b)(1), now (a)(1) and substituting \u201can issue\u201d for \u201ca question\u201d in section (a)(1). Neither of these changes affects our analysis.", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Twiggs, Strickland & Rabenau, RA., by Jerome P. Trehy, Jr., for plaintiff-appellee.", "Millberg Gordon Stewart PLLC, by Frank J. Gordon and B. Tyler Brooks, for defendant-appellee.", "Parker Poe Adams & Bernstein LLP, by Jason R. Benton, for defendant-appellants." ], "corrections": "", "head_matter": "JAMES C. LLOYD, III, Plaintiff v. NORFOLK SOUTHERN RAILWAY COMPANY, ERGON TRUCKING, INC. AND JEREMY RYAN TUCKER, Defendants\nNo. COA13-379\nFiled 17 December 2013\n1. Negligence \u2014 mitigation of damages \u2014 no unreasonable failure\nThe trial court did not err in a negligence case involving an accident between a tanker truck and a train by denying defendants\u2019 motion for judgment notwithstanding the verdict. Defendants failed to show that plaintiff unreasonably failed to mitigate his damages.\n2. Negligence \u2014 motion for new trial \u2014 no timely objection\u2014 damages awarded not excessive\nThe trial court did not err in a negligence case involving an accident between a tanker truck and a train by denying defendants\u2019 motion for a new trial. Defendants failed to make a timely objection to the evidence now complained of, and based upon the evidence presented, the damages awarded by the jury to the plaintiff were not excessive.\n3. Appeal and Error \u2014 issue moot \u2014 negligence\u2014indemnity\nThe trial court did not err in a negligence case involving an accident between a tanker truck and a train by dismissing defendants\u2019 claims for indemnity and contribution against co-defendant and granting co-defendant\u2019s claim for indemnity as to defendants. Where the jury found defendants to be negligent, and co-defendant not negligent, defendant\u2019s appeal of the trial court\u2019s ruling granting directed verdicts for co-defendant was moot.\nAppeal by defendants Ergon Trucking, Inc., and Jeremy Ryan Tucker from judgment entered 19 April 2012 and orders entered 11 June 2012 by Judge Jesse B. Caldwell, III in Mecklenburg County Superior Court. Heard in the Court of Appeals on 26 September 2013.\nTwiggs, Strickland & Rabenau, RA., by Jerome P. Trehy, Jr., for plaintiff-appellee.\nMillberg Gordon Stewart PLLC, by Frank J. Gordon and B. Tyler Brooks, for defendant-appellee.\nParker Poe Adams & Bernstein LLP, by Jason R. Benton, for defendant-appellants." }, "file_name": "0368-01", "first_page_order": 378, "last_page_order": 386 }