{ "id": 8521588, "name": "CARROLL DEAN EASON and wife, CHONG AE EASON v. ROCKY LEE BARBER and TERRY LEE BARBER", "name_abbreviation": "Eason v. Barber", "decision_date": "1988-03-15", "docket_number": "No. 8727SC727", "first_page": "294", "last_page": "298", "citations": [ { "type": "official", "cite": "89 N.C. App. 294" } ], "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": "130 S.E. 2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "259 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560727 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/259/0381-01" ] }, { "cite": "245 S.E. 2d 497", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563478 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0444-01" ] }, { "cite": "258 S.E. 2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 246", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569878 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0246-01" ] }, { "cite": "248 S.E. 2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "38 N.C. App. 607", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555369 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/38/0607-01" ] }, { "cite": "314 S.E. 2d 544", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 735", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2394545 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0735-01" ] }, { "cite": "231 S.E. 2d 607", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558856 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0630-01" ] }, { "cite": "58 S.E. 2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "231 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630917 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/nc/231/0533-01" ] }, { "cite": "163 S.E. 2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "2 N.C. App. 336", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552968 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc-app/2/0336-01" ] }, { "cite": "342 S.E. 2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 376", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4701344, 4697474, 4704689, 4705206, 4705180 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0376-05", "/nc/316/0376-03", "/nc/316/0376-02", "/nc/316/0376-01", "/nc/316/0376-04" ] }, { "cite": "337 S.E. 2d 94", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "78 N.C. App. 93", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519651 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/78/0093-01" ] } ], "analysis": { "cardinality": 545, "char_count": 11630, "ocr_confidence": 0.833, "pagerank": { "raw": 1.510489763464116e-07, "percentile": 0.6673711478931783 }, "sha256": "e9f77facbb32ebdeab4d94d5ac9a36e26f8bae5fb58d571d1327efeac635acd7", "simhash": "1:1d61c1321e1c6013", "word_count": 1852 }, "last_updated": "2023-07-14T22:39:00.818604+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Smith concur." ], "parties": [ "CARROLL DEAN EASON and wife, CHONG AE EASON v. ROCKY LEE BARBER and TERRY LEE BARBER" ], "opinions": [ { "text": "WELLS, Judge.\nUnder their first assignment of error plaintiffs argue that denial of their motion for judgment notwithstanding the verdict constituted reversible error in that plaintiffs were entitled to judgment as a matter of law. Determination of whether to grant a judgment notwithstanding the verdict is made by viewing the evidence, and all reasonable inferences therefrom, in the light most favorable to the non-movant. DeHart v. R/S Financial Corp., 78 N.C. App. 93, 337 S.E. 2d 94 (1985), cert. denied, 316 N.C. 376, 342 S.E. 2d 893 (1986). In the present case, plaintiffs claim that under applicable law, the evidence compels a finding in their favor.\nPlaintiffs rely on Petree v. Johnson, 2 N.C. App. 336, 163 S.E. 2d 87 (1968) in which this Court held that a driver attempting to make a left-hand turn is bound to exercise reasonable care in determining whether the turn can be made safely. Plaintiffs claim that defendant Rocky Barber\u2019s failure to realize that Eason\u2019s speed coupled with the two vehicles\u2019 proximity at the intersection breached his duty of care under Petree, supra, thereby rendering defendant liable. While true, the law likewise imposes a correlative duty upon oncoming drivers. It is expected:\n... in the absence of notice to the contrary that the oncoming motorist will maintain a proper lookout, drive at a lawful speed, and otherwise exercise due care to avoid collision with the turning vehicle.\nCooley v. Baker, 231 N.C. 533, 58 S.E. 2d 115 (1950).\nIn the present case, the jury, having been fully apprised of the applicable law, was entitled to construe the evidence of Eason\u2019s excessive speed (35-50 m.p.h. in a 20 m.p.h. zone) as a breach of his duty to keep a proper lookout, drive at a lawful speed, and exercise due care to avoid collision with defendant Barber\u2019s car, thereby finding plaintiff contributorily negligent. Plaintiffs\u2019 first assignment of error is overruled.\nBy their second assignment of error, plaintiffs argue that the trial court committed reversible error in denying plaintiffs\u2019 motion for a new trial because the verdict was against the greater weight of the evidence and because the trial court\u2019s instructions to the jury regarding contributory negligence were not supported by the evidence.\nUnder N.C. Gen. Stat. \u00a7 1A-1, Rule 59, a party may obtain a new trial either for errors of law committed during trial or for a verdict not sufficiently supported by the evidence. Britt v. Allen, 291 N.C. 630, 231 S.E. 2d 607 (1977). Where errors of law were committed, such as charging the jury on an issue not supported by the evidence, the trial court is required to grant a new trial. Jacobs v. Locklear, 310 N.C. 735, 314 S.E. 2d 544 (1984).\nPlaintiffs argue that the verdict went against the greater weight of the evidence because defendant, giving no indication that he intended to turn left, suddenly swerved out in front of plaintiff Eason approximately 15 feet from his motorcycle. Because plaintiff was entitled to assume that the Barber vehicle would wait until plaintiff had passed to make the turn safely, Brown v. Brown, 38 N.C. App. 607, 248 S.E. 2d 397 (1978), plaintiff argues that the sole responsibility for the collision rests with defendant. This argument, however, fails to refute or nullify the evidence of plaintiffs own negligence as indicated by the testimony relating to plaintiffs excessive speed, failure to keep a proper lookout, and failure to use due care to avoid the collision. The verdict, therefore, cannot be said to be against the greater weight of the evidence. Plaintiffs\u2019 second assignment of error is overruled.\nUnder their fourth assignment of error, plaintiffs complain that defendants\u2019 witnesses who testified as to plaintiffs excessive speed were not competent to do so. We disagree.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 701 of the Rules of Evidence allows for the admission of lay opinion if it is \u201c(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.\u201d In North Carolina the general rule for admission of opinion testimony on speed is that \u201c. . . a person of ordinary intelligence and experience is competent to state his opinion as to the speed of a vehicle when he has had a reasonable opportunity to observe the vehicle and judge its speed.\u201d Insurance Co. v. Chantos, 298 N.C. 246, 258 S.E. 2d 334 (1979).\nIn the present case, plaintiffs complain that defendants\u2019 witnesses were either too inexperienced or lacked the requisite opportunity to observe plaintiffs vehicle to have formulated a \u201cvalid\u201d opinion. We believe otherwise.\nPlaintiffs complain primarily that each of defendants\u2019 three witnesses lacked the necessary driving experience to formulate a reliable opinion on vehicular speed. Plaintiffs point out that one of the witnesses, Michael Lamberth, who was a passenger in defendant\u2019s car at the time of the collision and had testified that plaintiff appeared to be travelling 35 m.p.h., was only 17 years old and had had only nine months of driving experience at the time. Additionally, plaintiffs complain that James Hart, II, a witness who had observed plaintiff\u2019s approach from a parking lot adjacent to the intersection and who testified that plaintiff appeared to be trav-elling 40-50 m.p.h., was only 18 years old and had been driving for only 14 months.\nThe foregoing accounts of the witnesses\u2019 youth and driving experience fail to persuade us of any incompetency in their testimony. Under Insurance Co. v. Chantos, supra and Rule 701, it is sufficient only that the witness be a person of ordinary intelligence and have had an opportunity to observe the incident. There is no indication in the present record that defendants\u2019 witnesses lacked either ordinary intelligence or a reasonable opportunity to observe the incident. We therefore find that witnesses Lamberth and Hart were competent to testify on the speed of plaintiff\u2019s motorcycle as it approached the intersection.\nFinally, plaintiffs contend that defendant Barber\u2019s observation of plaintiff\u2019s approach, once at a 250 foot distance and again at a 150 foot distance, lacked the continuity required to provide Barber with a reliable perception of the plaintiffs speed. We disagree. It is not necessary for a witness to observe the action described continuously, Cockrell v. Transport Co., 295 N.C. 444, 245 S.E. 2d 497 (1978); Loomis v. Torrence, 259 N.C. 381, 130 S.E. 2d 540 (1963); only that the witness have perceived the incident sufficiently to have gained a rational basis on which to formulate an opinion. We believe that defendant Barber had ample opportunity to observe plaintiff\u2019s vehicle approach the intersection such that his testimony on plaintiff\u2019s speed was competent and admissible. Plaintiffs\u2019 fourth assignment of error is overruled.\nNo error.\nJudges Arnold and Smith concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Harris, Bumgardner & Carpenter, by Reid C. James and Nancy C. Northcott, for plaintiffs-appellants.", "Stott, Hollowell, Palmer & Windham, by Douglas P. Arthurs, for defendants-appellees." ], "corrections": "", "head_matter": "CARROLL DEAN EASON and wife, CHONG AE EASON v. ROCKY LEE BARBER and TERRY LEE BARBER\nNo. 8727SC727\n(Filed 15 March 1988)\n1. Automobiles and Other Vehicles \u00a7 79\u2014 collision at intersection \u2014 contributory negligence\nThe trial court did not err in an action arising from a collision at an intersection by denying plaintiffs\u2019 motion for judgment notwithstanding the verdict where the jury, having been fully apprised of applicable law, was entitled to construe the evidence of plaintiffs excessive speed as a breach of his duty to keep a proper lookout, drive at a lawful speed, and exercise due care to avoid collision with defendant\u2019s car, thereby finding plaintiff contributorily negligent.\n2. Automobiles and Other Vehicles \u00a7 79\u2014 left turn \u2014 collision\u2014verdict not against greater weight of the evidence\nThe trial court did not err in an action arising from a collision with an automobile making a left turn in denying plaintiffs\u2019 motion for a new trial because the verdict was against the greater weight of the evidence where there was evidence that defendant, giving no indication that he intended to turn left, suddenly swerved out in front of plaintiff approximately 15 feet from plaintiffs motorcycle, but there was testimony relating to plaintiffs excessive speed, failing to keep a proper lookout, and failing to use due care to avoid the collision.\n3. Automobiles and Other Vehicles \u00a7 46\u2014 opinion of bystanders as to speed \u2014 youthful witnesses \u2014testimony admissible\nThe trial court did not err in an automobile accident case by admitting the testimony of a seventeen-year-old and an eighteen-year-old witness as to plaintiffs excessive speed where there was no indication that defendants\u2019 witnesses lacked either ordinary intelligence or reasonable opportunity to observe the incident. N.C.G.S. \u00a7 8C-1, Rule 701.\n4. Automobiles and Other Vehicles \u00a7 46\u2014 opinion as to speed \u2014 intermittent observation \u2014admissible\nThe trial court did not err in an automobile accident case by admitting defendant\u2019s testimony as to plaintiffs speed where defendant observed plaintiffs approach at a 250 foot distance and again at a 150 foot distance. It is not necessary for a witness to observe the action described continuously, only that the witness had perceived the incident sufficiently to have gained a rational basis on which to formulate an opinion.\nAppeal by plaintiffs from Hyatt, J. Marlene, Judge. Judgment entered on the verdict 11 May 1987 in GASTON County Superior Court. Heard in the Court of Appeals 6 January 1988.\nThis action was instituted to recover damages resulting from the collision of plaintiff Carroll Dean Eason\u2019s motorcycle with defendants\u2019 car. Plaintiffs wife, Chong Ae, joined in plaintiffs action seeking recovery for loss of consortium. Defendant Terry Lee Barber, owner of the motor vehicle driven by his minor son, defendant Rocky Lee Barber, counterclaimed for damages incurred as a result of the same collision.\nThe matter came on for trial before a jury 4 May 1987. Over plaintiffs\u2019 objections, defendants presented witnesses who testified as to the speed of plaintiffs\u2019 motorcycle just before the collision. At the close of all the evidence, plaintiffs moved for a directed verdict on grounds that defendants had failed to prove plaintiff Carroll Dean Eason\u2019s contributory negligence as a matter of law. The trial court denied plaintiffs\u2019 motion and submitted eight issues to the jury which, over plaintiffs\u2019 objection, included an issue of plaintiffs\u2019 contributory negligence. The jury returned a verdict finding that the defendant Rocky Lee Barber was negligent but that plaintiff Carroll Dean Eason was also contributorily negligent.\nThe evidence at trial tended to show that on 11 July 1986 at approximately 11:20 p.m., plaintiff Carroll Eason was driving his motorcycle en route home when he approached the intersection of Catawba Avenue and South Main Street in Mount Holly. Plaintiff Eason testified that he saw defendant Rocky Barber approaching the intersection from the opposite direction and that defendant appeared to be only 15 feet away from plaintiff when he turned left into plaintiff Eason\u2019s lane. Witnesses for defendants testified that plaintiff appeared to be travelling between 35-50 m.p.h. in a 20 m.p.h. zone. Martin Owensby, plaintiffs\u2019 witness who was driving immediately behind plaintiff, testified that plaintiff was travelling about 15 m.p.h. as he approached the intersection.\nFrom the trial court\u2019s denial of plaintiffs\u2019 subsequent motions for judgment notwithstanding the verdict and a new trial, plaintiffs appeal.\nHarris, Bumgardner & Carpenter, by Reid C. James and Nancy C. Northcott, for plaintiffs-appellants.\nStott, Hollowell, Palmer & Windham, by Douglas P. Arthurs, for defendants-appellees." }, "file_name": "0294-01", "first_page_order": 322, "last_page_order": 326 }