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  "name": "JEAN S. TATUM v. FRANK TATUM",
  "name_abbreviation": "Tatum v. Tatum",
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  "casebody": {
    "judges": [
      "Judge Johnson concurs.",
      "Judge Phillips dissents."
    ],
    "parties": [
      "JEAN S. TATUM v. FRANK TATUM"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nPlaintiffs sole contention is that the court erred in denying her motion to set aside the verdict on the contributory negligence issue.\nWhere no question of law or legal inference is involved, a motion to set aside the verdict is addressed to the sound discretion of the trial court and its ruling is not subject to review in the absence of an abuse of discretion. (Citations omitted.) But when a judge . . . grants or refuses to grant a new trial because of some question of law or legal inference which the judge decides, the decision may be appealed and the appellate court will review it.\nIn re Will of Herring, 19 N.C. App. 357, 359-60, 198 S.E. 2d 737, 739-40 (1973). The submission of a contributory negligence issue where there is no evidence of contributory negligence is error, and the court errs as a matter of law if it denies a motion to set aside the verdict under such circumstances. Jacobs v. Locklear, 310 N.C. 735, 314 S.E. 2d 544 (1984), modifying and affirming, 65 N.C. App. 147, 308 S.E. 2d 748 (1983). The issue thus is whether there was evidence from which the jury reasonably could conclude that plaintiff contributed to her injury by her own negligence. We hold that there was.\nOur Supreme Court has stated the applicable legal principles as follows:\nAn apt statement of the doctrine of contributory negligence for purposes of this appeal is found [in] Clark v. Roberts, 263 N.C. 336, 139 S.E. 2d 593 (1965):\n\u201cEvery person having the capacity to exercise ordinary care for [her] own safety against injury is required by law to do so, and if [she] fails to exercise such care, and such failure, concurring and cooperating with the actionable negligence of defendant contributes to the injury complained of, [she] is guilty of contributory negligence. Ordinary care is such care as an ordinarily prudent person would exercise under the same or similar circumstances to avoid injury. [Citations omitted.]\nPlaintiff is subject to this universal rule, but [her] conduct on this occasion \u2018must be judged in the light of the general principle that the law does not require a person to shape [her] behavior by circumstances of which [she] is justifiably ignorant, and the resultant particular rule that a plaintiff cannot be guilty of contributory negligence unless [she] acts or fails to act with knowledge and appreciation, either actual or constructive, of the danger of injury which [her] conduct involves.\u2019 [Citations omitted.]\u201d (Emphasis added.)\nIn order for contributory negligence to apply, it is not necessary that plaintiff be actually aware of the unreasonable danger of injury to which [her] conduct exposes [her]. Plaintiff may be contributorily negligent if [her] conduct ignores unreasonable risks or dangers which would have been apparent to a prudent person exercising ordinary care for [her] own safety. See Restatement (Second) of Torts Sec. 466(b) and Comment f, W. Prosser, [Law of Torts], Sec. 65 at 424 [(4th ed. 1971)]. Accord, Clark v. Roberts, supra. Simply put, the existence of contributory negligence does not depend on plaintiffs subjective appreciation of danger; rather, contributory negligence consists of conduct which fails to conform to an objective standard of behavior \u2014 \u201cthe care an ordinarily prudent person would exercise under the same or similar circumstances to avoid injury.\u201d Clark v. Roberts, supra.\nSmith v. Fiber Controls Corp., 300 N.C. 669, 673, 268 S.E. 2d 504, 507 (1980). \u201cIf there is more than a scintilla of evidence, contributory negligence is for the jury.\u201d Pearson v. Luther, 212 N.C. 412, 421, 193 S.E. 739, 745 (1937).\nViewed in the light most favorable to defendant, Smith, 300 N.C. at 673, 268 S.E. 2d at 507, the evidence here pertinent to contributory negligence tends to show the following:\nDefendant, plaintiffs husband, owned a \u201cstraight drive\u201d 1972 Datsun automobile. The vehicle did not have a battery \u201chold-down.\u201d Part of the hold-down had broken off, and defendant had never replaced it. The battery thus was \u201csitting there\u201d with nothing to hold it in place. On prior occasions the battery \u201chad fell off\u2019 and defendant \u201cjust picked it up and set it back up there.\u201d Defendant had let his brother use the battery out of the Datsun and had taken the battery from his other automobile and \u201cset it in\u201d the Datsun unsecured. Defendant knew the battery was unsecured.\nOn the evening in question defendant was driving the Datsun with plaintiff in the front passenger seat. The vehicle stalled. The hand brake had never worked, so defendant left the vehicle in second gear. He also left the \u201cswitch key\u201d on. He did not place anything under the wheels to keep the vehicle from moving.\nAfter he raised the hood, defendant told plaintiff that the battery \u201cfell off.\u201d The vehicle did not have a rod to hold the hood up, so defendant asked plaintiff to come to the front of the vehicle and hold up the hood while he put the battery back in the box.\nWhen defendant put the battery back in the box, the vehicle \u201cstarted running again.\u201d It \u201cpushed [him] back.\u201d It then knocked plaintiff down and ran over her, dragging her eight or ten feet. Plaintiff sustained extensive personal injuries.\nDefendant testified that there was nothing to prevent plaintiff from holding the hood up from a position beside, rather than in front of the vehicle. The battery had tilted over on previous occasions, however, and the vehicle had not started when he set the battery upright. He thus did not expect the vehicle to start when he set the battery upright on this occasion.\nAn automobile mechanic testified that incidents of this type had occurred in his shop. He gave his opinion as to the cause.\nPlaintiff testified that she had no automotive mechanical ability other than \u201cdriving one.\u201d When the vehicle \u201cknocked off,\u201d defendant told her that the battery had tipped over. She could see that. She was holding up the vehicle\u2019s hood from the front when the vehicle started, knocked her down, ran over her, and dragged her. Defendant was on the driver\u2019s side of the vehicle. There was no reason she could not have gone around to the other side of the vehicle to hold up the hood, although it was \u201cbetter\u201d to hold it from the front. When she exited from the car she went \u201cstraight around to the front.\u201d She knew before she went and stood in front of the vehicle that defendant had not put anything under the wheel and that there was nothing under the wheel to keep the vehicle from moving.\nWe find in the foregoing sufficient evidence from which a jury could conclude that by standing in front of the vehicle while defendant returned the battery to its box, plaintiff failed to use the care that an ordinarily prudent person would have exercised under similar circumstances to avoid injury. The evidence indicates that plaintiff could have held up the hood by standing to the side of the vehicle rather than in front of it. She knew that there was nothing under the wheels to keep the vehicle from moving. She could observe that the vehicle was in gear and the \u201cswitch key\u201d was on.\nWhile plaintiff testified that she had no automotive mechanical ability other than \u201cdriving one,\u201d \u201cthe existence of contributory negligence does not depend on plaintiff\u2019s subjective appreciation of danger; rather, [it] consists of conduct which fails to conform to an objective standard of behavior \u2014\u2018the care an ordinarily prudent person would exercise under the same or similar circumstances to avoid injury.\u2019 \u201d Smith, supra. We cannot say as a matter of law that an ordinarily prudent person under the same or similar circumstances as plaintiff would not have been aware of the potential danger and taken care to avoid injury. There was \u201cmore than a scintilla of evidence\u201d of contributory negligence, which made the issue one for the jury. Pearson, supra. The court thus did not err in denying plaintiffs motion to set aside the verdict on the contributory negligence issue.\nAs part of her argument that the court erred in denying her motion to set aside the verdict, plaintiff contends the court erred in its instructions on the issue of contributory negligence. Error in the instructions was not the basis of the motion to set aside the verdict, however. Further, no objection was made at trial to any portion of the jury instructions. On the contrary, plaintiff\u2019s attorney responded \u201cNo, Your Honor,\u201d when asked if there were objections to the charge or to omissions therefrom. Further still, plaintiff did not take any exception to the jury instructions or make any assignment of error to the charge as given. To preserve an issue for appellate review, there must be an exception in the record which is brought forward in an appropriate assignment of error. N.C. R. App. P. 10. Otherwise, no question is presented to the appellate court. Durham v. Quincy Mutual Fire Ins. Co., 311 N.C. 361, 367, 317 S.E. 2d 372, 377 (1984), citing State v. McMorris, 290 N.C. 286, 225 S.E. 2d 553 (1976). Where a portion of the charge is challenged, it must be identified in the record on appeal by clear means of reference. Id., citing N.C. R. App. P. 10(b)(2). Plaintiff has failed to do this and to comply with other requirements of N.C. R. App. P. 10(b)(2). While plaintiff has not asked us to apply \u201cplain error,\u201d we note that this doctrine does not apply in appeals in civil cases. Id.\nBecause we find no error in plaintiffs appeal, we need not pass on defendant\u2019s cross appeal in which he contends that the court erred in denying his motion for directed verdict.\nNo error.\nJudge Johnson concurs.\nJudge Phillips dissents.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      },
      {
        "text": "Judge Phillips\ndissenting.\nIn my view the evidence recorded does not support the finding that plaintiff was contributorily negligent, and a new trial should be ordered. The law does not require people to act on the premise that others have been or will be negligent; in the absence of circumstances indicating otherwise, every person has a right to assume that others have acted and will continue to act with due care. Not a word in the evidence suggests that plaintiff either knew or should have known that defendant had left the switch on and the car in gear; and that, under these circumstances, she stood in front of the car when holding up the hood is no proof whatever of negligence. People holding up the hoods of idle, unattended cars nearly always stand in front because it is the natural and convenient place to stand and there is no reason not to do so if the ignition is not on and the car is not in gear. That plaintiff \u201ccould have observed,\u201d as the opinion states, \u201cthat the vehicle was in gear and the \u2018switch key\u2019 was on\u201d is no indication that she should have observed any such thing. Unless there is some indication of oversight or incompetence, the law permits car passengers to trust their drivers to perform the simple act of parking the car safely; certainly it does not require them to verify that the driver cut off the ignition. The law, it is said, does not permit one to profit from his own wrong. Yet this decision permits defendant to escape liability on the brazen, unconscionable and legally absurd ground that plaintiff did precisely what he asked her to do, a seemingly innocuous thing, and did it in a manner entirely suitable to him, since he did not suggest that she stand elsewhere.",
        "type": "dissent",
        "author": "Judge Phillips"
      }
    ],
    "attorneys": [
      "Arthur Vann for plaintiff appellant.",
      "Bryant, Drew & Patterson, P.A., by Victor S. Bryant, Jr., for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "JEAN S. TATUM v. FRANK TATUM\nNo. 8514SC714\n(Filed 4 March 1986)\n1. Negligence \u00a7 34.1\u2014 unexpected starting of automobile \u2014contributory negligence-evidence sufficient\nThere was sufficient evidence to submit contributory negligence to the jury where defendant was plaintiffs husband; defendant owned a 1972 Datsun which did not have a battery hold-down or a functional hand brake; the battery sat in the car with nothing to hold it in place and had previously fallen; defendant was driving with plaintiff as a passenger when the car stalled; defendant left the car in second gear, left the switch on, and did not place anything under the wheels when he raised the hood; the car did not have a rod to hold the hood up, so defendant asked plaintiff to hold the hood while he put the battery back in place; plaintiff stood in front of the car to hold the hood; when defendant replaced the battery, the vehicle started, knocked plaintiff down, ran over her, and dragged her eight or ten feet; and there was nothing to prevent plaintiff from holding the hood from beside rather than in front of the car.\n2. Appeal and Error \u00a7 31.1\u2014 alleged error in instruction \u2014 App. Rule 10 not complied with\nPlaintiff failed to comply with the requirements of App. Rule 10(b) when arguing that the trial court erred by denying her motion to set aside the verdict based on its instructions on contributory negligence where error in the instructions was not the basis of the motion to set aside the verdict; no objection was made at trial to any portion of the jury instructions; plaintiffs attorney responded in the negative when asked if there were objections to the charge; plaintiff did not take any exception to the jury instructions or make any assignment of error to the charge as given; and the challenged portion of the charge was not clearly identified in the record on appeal.\nJudge Phillips dissenting.\nAPPEAL by plaintiff from Lee, Judge. Judgment entered 28 March 1985 in Superior Court, DURHAM County. Heard in the Court of Appeals 4 December 1985.\nPlaintiff appeals from a judgment for defendant entered upon a verdict finding that plaintiff was injured by defendant\u2019s negligence, but that plaintiff was contributorily negligent.\nArthur Vann for plaintiff appellant.\nBryant, Drew & Patterson, P.A., by Victor S. Bryant, Jr., for defendant appellee."
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  "file_name": "0605-01",
  "first_page_order": 633,
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}
