{ "id": 8523241, "name": "EDWARD E. HORNE, Administrator of the Estate of Douglas Edward Horne, Plaintiff Appellee v. MARTHA BAREFOOT TRIVETTE and DEAN DEWITT TRIVETTE, Defendant Appellants", "name_abbreviation": "Horne v. Trivette", "decision_date": "1982-07-06", "docket_number": "No. 8121SC1023", "first_page": "77", "last_page": "83", "citations": [ { "type": "official", "cite": "58 N.C. App. 77" } ], "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": "270 S.E. 2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "49 N.C. App. 196", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520358 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/49/0196-01" ] }, { "cite": "138 S.E. 2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "262 N.C. 727", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571487 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/262/0727-01" ] }, { "cite": "28 S.E. 2d 556", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "opinion_index": 0 }, { "cite": "223 N.C. 792", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617758 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/nc/223/0792-01" ] }, { "cite": "97 S.Ct. 46", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1976, "opinion_index": 0 }, { "cite": "50 L.Ed. 2d 69", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "429 U.S. 809", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6085, 7371, 6739, 5782, 5823 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/429/0809-04", "/us/429/0809-01", "/us/429/0809-03", "/us/429/0809-05", "/us/429/0809-02" ] }, { "cite": "221 S.E. 2d 333", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567445 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0159-01" ] }, { "cite": "123 S.E. 2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "256 N.C. 265", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572434 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/256/0265-01" ] }, { "cite": "192 S.E. 2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564321 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0278-01" ] }, { "cite": "262 S.E. 2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "45 N.C. App. 108", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547663 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/45/0108-01" ] }, { "cite": "212 S.E. 2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 525", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569263 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0525-01" ] }, { "cite": "64 S.E. 2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 N.C. 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609499 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/233/0415-01" ] }, { "cite": "62 S.E. 2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "233 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598021 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/nc/233/0065-01" ] }, { "cite": "272 S.E. 2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "49 N.C. App. 642", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523168 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/49/0642-01" ] } ], "analysis": { "cardinality": 661, "char_count": 13084, "ocr_confidence": 0.793, "pagerank": { "raw": 3.0178205221187764e-07, "percentile": 0.8536787279876162 }, "sha256": "7303f53a3c26ab81d83e20a418729b1009b378899414e6be3b0b8561932f7835", "simhash": "1:99e7c4ba7abc0849", "word_count": 2172 }, "last_updated": "2023-07-14T18:20:52.636886+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MORRIS and Judge MARTIN (Harry C.) concur." ], "parties": [ "EDWARD E. HORNE, Administrator of the Estate of Douglas Edward Horne, Plaintiff Appellee v. MARTHA BAREFOOT TRIVETTE and DEAN DEWITT TRIVETTE, Defendant Appellants" ], "opinions": [ { "text": "CLARK, Judge.\nDefendants argue that the court erred in denying their motions for directed verdict and judgment notwithstanding the verdict on the issues of defendant Martha Trivette\u2019s negligence and Horne\u2019s contributory negligence. They contend that the evidence did not show any actionable negligence by defendant which proximately caused Horne\u2019s death, and that Horne\u2019s failure to keep a proper lookout caused the accident. The question presented by a defendant\u2019s motion for a directed verdict is whether the evidence, taken in the light most favorable to plaintiff, is sufficient for submission to the jury. Hunt v. Montgomery Ward and Co., 49 N.C. App. 642, 272 S.E. 2d 357 (1980). Plaintiffs evidence tended to show that defendant slowed down, started to turn left into a median crossover which separated the four-lane highway but failed to complete the turn. She stopped short, leaving between five to eight feet of the rear of her car in the left-hand lane of travel. A person who drives a motor vehicle upon this State\u2019s highways must exercise reasonable care to ascertain that he can turn safely from a straight course of travel. G.S. 20-154; Grimm v. Watson, 233 N.C. 65, 62 S.E. 2d 538 (1950). The drivers of vehicles following defendant had the right to expect her to complete her turn and not stop short, blocking the flow of traffic in the left-hand lane. The evidence tends to show negligence on her part. Whether her negligence proximately caused Horne\u2019s death is a question for the jury. Ervin v. Mills Co., 233 N.C. 415, 64 S.E. 2d 431 (1951). We find the evidence was sufficient to warrant submission of the issue of defendant\u2019s negligence to the jury and to overcome the motion for directed verdict.\nLikewise, we find the court properly denied defendants\u2019 motion for a directed verdict on the contributory negligence issue. A directed verdict on the ground of contributory negligence will not be entered unless the evidence, taken in the light most favorable to plaintiff, so clearly establishes contributory negligence that no other reasonable inference or conclusion could be reached. Clary v. Board of Education, 286 N.C. 525, 212 S.E. 2d 160 (1975). The fact that the collision occurred is some evidence that Horne failed to keep a proper lookout, but it does not compel this conclusion. Shay v. Nixon, 45 N.C. App. 108, 262 S.E. 2d 294 (1980). We believe that reasonable men could form differing opinions on this issue based upon the evidence and particularly in light of the sudden emergency doctrine. This issue, as well as the preceding one, was to be resolved by the jury, and defendants\u2019 motions were properly denied.\nDefendants next argue that the doctrine of sudden emergency was inapplicable to this situation and that an instruction should not have been given on it. The doctrine applies in sit\u00faa-tions where defendant\u2019s negligence creates a sudden emergency and plaintiffs acts have not brought about or contributed to the emergency. Plaintiff is held to the standard of care of acting as a reasonably prudent man would under similar circumstances, not to a standard of selecting the wisest course of conduct when faced with the sudden emergency. Barney v. Highway Comm., 282 N.C. 278, 192 S.E. 2d 273 (1972); Rodgers v. Thompson, 256 N.C. 265, 123 S.E. 2d 785 (1962). There is evidence tending to show that Horne was confronted with a sudden emergency. It was for the jury to determine whether Horne contributed to the creation of the emergency and whether he acted as a reasonably prudent man would have acted when confronted with the obstruction caused by defendants\u2019 car. The trial court correctly instructed on the doctrine.\nDefendants assign as error the admission of testimony of Isaacs, an eyewitness, that \u201c[t]he truck swerved to the right as much as he possibly could.\u201d They argue that this statement invaded the province of the jury and was objectionable because it was an opinion and conclusion of the witness. We believe that the statement was admissible as a \u201cshorthand statement of the fact\u201d since the witness Isaacs was testifying concerning the results of his observation of the events leading up to the accident. State v. Bush, 289 N.C. 159, 221 S.E. 2d 333, death sentence vacated, 429 U.S. 809, 50 L.Ed. 2d 69, 97 S.Ct. 46 (1976); 1 Stansbury\u2019s N.C. Evidence \u00a7 125 (Brandis rev. 1973). His observation concerned an action that Horne took to avoid the collision and was not a conclusion on the ultimate issue of Horne\u2019s contributory negligence. Isaacs expanded on this statement by also testifying that there was traffic in the right-hand lane, that defendants\u2019 car obstructed the left-hand lane, that he himself swerved to avoid an accident, and that he had a clear view of Horne\u2019s truck at the time of the accident. We overrule this assignment of error.\nNor do we find error in the trial court\u2019s summary of the evidence. The trial judge used the same format in summarizing both plaintiff and defendants\u2019 evidence and taken in context, the court did not err in characterizing the evidence \u201cas tending to show\u201d certain facts. This language does not express the court\u2019s opinion of the evidence. Thompson v. Davis, 223 N.C. 792, 28 S.E. 2d 556 (1944). We overrule this assignment of error.\nDefendants\u2019 final argument is that the court erred in denying their motion for new trial. They seek a new trial on the basis of G.S. 1A-1, Rule 59(a)(1) which provides that a new trial may be granted for \u201c[a]ny irregularity by which any party was prevented from having a fair trial.\u201d They submit that they were denied a fair trial because the investigating officer withheld the name of the service station operator, Hinson, until the trial had started; several witnesses who could have corroborated Hinson\u2019s account of the accident were not discovered until after the trial; Russell failed to state in his deposition that he had reported the accident to his employer on that date; and other material conflicts between Russell\u2019s deposition and his trial testimony.\nDespite the withholding of Hinson\u2019s name from defense counsel, Hinson did testify in defendants\u2019 behalf, and it would appear that reasonable investigation efforts after the accident and after disclosure of Hinson\u2019s existence would have produced the other individuals who could have substantiated Hinson\u2019s version of the accident. Every witness except Russell testified that there was only one dump truck traveling along the highway prior to the accident. We are not convinced that the testimony of two men who did not witness the impact but arrived immediately after the accident at the scene could affect the jury verdict. Evidence which is merely corroborative or cumulative of evidence offered at trial or which contradicts evidence of the opposing party is insufficient to warrant granting a new trial. Branch v. Seitz, 262 N.C. 727, 138 S.E. 2d 493 (1964).\nThe changes in Russell\u2019s testimony in the deposition and at trial affect his credibility, and it was for the jury to determine whether they believed his inconsistent testimony. Defense counsel conducted extensive impeachment of the witness by using his deposition testimony. A motion to set aside the verdict and order a new trial is addressed to the discretion of the trial judge. His ruling is not reviewable on appeal, absent a showing of abuse of discretion. Hamlin v. Austin, 49 N.C. App. 196, 270 S.E. 2d 558 (1980). Judge DeRamus presided over both the trial and at the hearing on the motion for a new trial. Affidavits were presented by both parties at the hearing, and the court heard argument of counsel. Defendants have presented no compelling arguments showing they are entitled to a new trial. Based upon the record, we find no abuse of discretion by the trial judge in refusing defendants\u2019 motion for new trial.\nNo error.\nChief Judge MORRIS and Judge MARTIN (Harry C.) concur.", "type": "majority", "author": "CLARK, Judge." } ], "attorneys": [ "Whiting, Horton and Hendrick by T. Paul Hendrick and Hamilton C. Horton, Jr., for plaintiff appellee.", "Bell, Davis & Pitt by William Kearns Davis for defendant appellants." ], "corrections": "", "head_matter": "EDWARD E. HORNE, Administrator of the Estate of Douglas Edward Horne, Plaintiff Appellee v. MARTHA BAREFOOT TRIVETTE and DEAN DEWITT TRIVETTE, Defendant Appellants\nNo. 8121SC1023\n(Filed 6 July 1982)\n1. Automobiles and Other Vehicles \u00a7\u00a7 56.2, 80\u2014 turning at crossover \u2014stopping partially in lane of travel \u2014 negligence and contributory negligence\nPlaintiffs evidence was sufficient for the jury on the issue of defendant\u2019s negligence and did not disclose contributory negligence by plaintiffs intestate as a matter of law where it tended to show that defendant slowed down and started to turn left into a median crossover which separated the northbound and southbound lanes of a four-lane highway, that she failed to complete the turn and stopped short, leaving from five to eight feet of the rear of her car in the left-hand lane of travel, and that plaintiffs intestate was killed when his loaded gravel truck struck the rear of defendant\u2019s car.\n2. Automobiles and Other Vehicles \u00a7 90.7\u2014 instructions on sudden emergency\nThe evidence was sufficient to justify the trial court\u2019s instructions on sudden emergency in an action to recover for the death of plaintiffs intestate who was killed when his loaded gravel truck struck the rear of an automobile operated by defendant which had stopped partially in the intestate\u2019s lane of travel at a crossover between the northbound and southbound lanes of a four-lane highway.\n3. Evidence \u00a7 42\u2014 shorthand statement of fact\nTestimony by a witness that \u201cthe truck swerved to the right as much as he possibly could\u201d did not invade the province of the jury but was admissible as a shorthand statement of fact.\n4. Rules of Civil Procedure \u00a7 59\u2014 failure of investigating officer to disclose eyewitness \u2014 no denial of fair trial\nThe trial court did not err in the denial of defendants\u2019 6.S. 1A-1, Rule 59(a)(1) motion for a new trial on the ground that they had been prevented from having a fair trial because the investigating officer failed to disclose the name of an eyewitness to the collision in question until the trial had started and because several witnesses who could have corroborated the eyewitness\u2019s account of the collision were not discovered until after trial since the eyewitness did testify in defendants\u2019 behalf, and it appeared that reasonable investigation efforts after the accident and after disclosure of the existence of the eyewitness would have produced the other individuals who could have substantiated the eyewitness\u2019s version of the accident.\nAPPEAL by defendants from DeRamus, Judge. Judgment entered 31 March 1981 in Superior Court, FORSYTH County. Heard in the Court of Appeals 5 May 1982.\nThis is an appeal from the judgment after a jury verdict of $150,000 for plaintiff in a wrongful death action. Plaintiffs intestate, hereafter referred to as Horne, was killed when his loaded gravel truck struck the rear of an automobile operated by defendant Martha Trivette stopped partially in a lane of traffic at a crossover on Interstate 85 near Lexington, North Carolina.\nDefendants denied negligence, alleged contributory negligence and counterclaimed for personal injuries and property damage.\nPlaintiff\u2019s Evidence\nThe accident occurred at about 11:00 a.m. on 21 September 1978 on 1-85 outside Lexington. The weather was clear and the road was dry. The accident took place at a crossover between the two northbound and two southbound lanes. Defendants\u2019 car turned left into the crossover, with the rear of the car remaining several feet in the left-hand southbound lane. Horne was following defendants\u2019 car in the inside lane and after it turned, Horne applied the brakes and swerved to the right. There was traffic to his right in the outside southbound lane. The truck went out of control after striking the rear of defendants\u2019 car, crashed through a concrete railing on an overpass and landed. cab first on the street below. The driver of a car which was between defendants\u2019 car and the truck saw the truck rapidly approaching behind him and steered his car into the grassy median to avoid being caught between the two vehicles. The crossover within the median was 23 feet long and defendants\u2019 car was 18 to 20 feet long. The witness Jim Russell testified that he was driving a gravel truck in front of Horne; that he swerved suddenly to avoid colliding with the Trivette car; that he observed the collision, stopped, and walked back to the scene, but that when he realized his friend Horne was dead, he left in a state of shock and did not report that he witnessed the collision.\nDefendants* Evidence\nThe owner of a nearby service station testified that the truck driver blew his horn before hitting the car and that the car in the crossover had its left turn signal on. The defendant operator and her three passengers testified that the car pulled into the crossover as far as possible without being in danger of being hit by cars in the northbound lane. Defendant had been waiting for the northbound traffic to clear when Horne struck her. No one in the car was seriously injured.\nWhiting, Horton and Hendrick by T. Paul Hendrick and Hamilton C. Horton, Jr., for plaintiff appellee.\nBell, Davis & Pitt by William Kearns Davis for defendant appellants." }, "file_name": "0077-01", "first_page_order": 109, "last_page_order": 115 }