{ "id": 8568007, "name": "JUDY BRADLEY PENLAND, and husband, BRUCE ELBERT PENLAND v. RONNIE GREEN", "name_abbreviation": "Penland v. Green", "decision_date": "1976-01-29", "docket_number": "No. 83", "first_page": "281", "last_page": "286", "citations": [ { "type": "official", "cite": "289 N.C. 281" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "210 S.E. 2d 505", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": -1 }, { "cite": "24 N.C. App. 240", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549904 ], "year": 1974, "opinion_index": -1, "case_paths": [ "/nc-app/24/0240-01" ] }, { "cite": "148 S.E. 2d 536", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "544" } ], "opinion_index": 0 }, { "cite": "267 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559691 ], "year": 1966, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nc/267/0457-01" ] }, { "cite": "156 S.E. 2d 727", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564065 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0372-01" ] }, { "cite": "160 S.E. 2d 305", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "parenthetical": "dealing with a private drive situation but inadvertently citing N. C. Gen. Stat. 20-158" } ], "opinion_index": 0 }, { "cite": "273 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575569 ], "year": 1968, "pin_cites": [ { "parenthetical": "dealing with a private drive situation but inadvertently citing N. C. Gen. Stat. 20-158" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0457-01" ] }, { "cite": "129 S.E. 2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "259 N.C. 135", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559483 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/259/0135-01" ] }, { "cite": "72 S.E. 2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "236 N.C. 72", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622355 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/236/0072-01" ] }, { "cite": "177 S.E. 2d 284", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 337", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564994 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0337-01" ] } ], "analysis": { "cardinality": 618, "char_count": 12581, "ocr_confidence": 0.663, "pagerank": { "raw": 2.4366433344579677e-07, "percentile": 0.8026386866570213 }, "sha256": "5a6733d970e480d96f05ec0b2682732608e86b8c0cca189690223d8fb4ffdf36", "simhash": "1:424597e2780cc67a", "word_count": 2121 }, "last_updated": "2023-07-14T21:21:01.191113+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JUDY BRADLEY PENLAND, and husband, BRUCE ELBERT PENLAND v. RONNIE GREEN" ], "opinions": [ { "text": "EXUM, Justice.\nOn several occasions during the course of the trial, the judge allowed motions to strike certain testimony and the jury was told on each occasion to disregard that testimony and not consider it in their deliberations. In his final instructions to the jury the judge said:\n. . . The Court will again instruct you that when it has instructed you to disregard testimony, disabuse it from your mind not to consider it. Please follow those instructions in your deliberations.\nDefendant strenuously argues that the second and third \u201cit\u201d in the first sentence quoted above refer to the judge\u2019s prior instructions rather than to the testimony itself and that, in effect, the judge was countermanding his prior instructions. The argument is patently without merit. The use of the words \u201cagain instruct\u201d followed by the sentence, \u201cPlease follow those instructions. . . .\u201d removes beyond doubt any ambiguity which might otherwise exist regarding the antecedent of the pronoun \u201cit.\u201d\nDefendant next contends there was error when the trial judge confused the law relating to entering a highway from a private road or drive, N. C. Gen. Stat. 20-156(a), and the law relating to entering a dominant highway from a servient highway, N. C. Gen. Stat. 20-158. The femme plaintiff entered a public highway from a private driveway of the American Enka plant. Defendant motorist was traveling on the public highway. The trial judge, on occasion, used the terms \u201cdominant\u201d and \u201cservient\u201d in referring to the roads in question. The Court of Appeals correctly noted that while this nomenclature may not have been precisely correct under the circumstances, the trial judge instructed upon proper principles of law applicable to each motorist and defendant was not prejudiced thereby.\nOn appeal to this Court defendant\u2019s contention that he has been prejudiced is made somewhat clearer. He seems to argue that General Statute 20-156(a) (1965) insofar as it required a motorist entering from a private drive to \u201cyield the right-of-way to all vehicles approaching on such public highway\u201d (emphasis supplied) should have been construed so as to have imposed an absolute duty here upon femme plaintiff to yield to defendant even if the jury could have found that femme plaintiff, exercising reasonable care, was not, and should not have been, aware that defendant was approaching at such a high and negligent speed as to make her entry onto the highway an unsafe maneuver.\nThis is not the law. Ordinarily a person has no duty to anticipate negligence on the part of others. In the absence of anything which gives or should give notice to the contrary, he has the right to assume and to act on the assumption that others will observe the rules of the road and obey the law. Wrenn v. Waters, 277 N.C. 337, 177 S.E. 2d 284 (1970); Cox v. Freight Lines and Matthews v. Freight Lines, 236 N.C. 72, 72 S.E. 2d 25 (1952). However, the right to rely on this assumption is not absolute, and if the circumstances existing at the time are such as reasonably to put a person on notice that he cannot rely on the assumption, he is under a duty to exercise that care which a reasonably careful and prudent person would exercise under all the circumstances then existing. Cox and Matthews, supra. In Kirkman v. Willard, 259 N.C. 135, 129 S.E. 2d 895 (1963), the plaintiff\u2019s evidence was that she stopped before entering an intersection in the city limits of Wilmington because there were \u201cYield Right of Way\u201d signs. She had a clear view to the left and saw no moving vehicles. She entered the intersection and was struck by defendant\u2019s vehicle which was traveling 45-50 mph from her left. Although defendant\u2019s evidence differed, the jury answered issues of negligence, contributory negligence and damages in favor of plaintiff. This Court held that defendant\u2019s motion for nonsuit was properly denied. There was no suggestion that plaintiff\u2019s admitted duty to yield the right-of-way extended to vehicles which, the jury could have found she had not and, in the exercise of reasonable care, should not have seen.\nGeneral Statute 20-156 (a) (1965) did not, nor does it now, as defendant seems to argue, require omniscience on the part of a motorist entering a public highway from a private drive. In order to comply with General Statute 20-156 (a) (1975) the driver of a vehicle about to enter or cross a highway from an alley, building entrance, private road, or driveway is only required to look for vehicles approaching on the highway at a time when his lookout may be effective, to see what he should see, and to yield the right-of-way to vehicles on the highway which, in the exercise of reasonable care, he sees or should see are being operated at such a speed or distance as to make his entry onto the highway unsafe, by delaying his entry onto the highway until a reasonable and prudent man would conclude that the entry could be made in safety. Warren v. Lewis, 273 N.C. 457, 160 S.E. 2d 305 (1968) (dealing with a private drive situation but inadvertently citing N. C. Gen. Stat. 20-158); Galloway v. Hartman, 271 N.C. 372, 156 S.E. 2d 727 (1967); N.C.P.I.\u2014Civil 203.29 (May 1975). This in substance is how the trial judge instructed the jury in this case.\nAppellant quibbles with the recitation of facts both by the Court of Appeals and the trial judge in his jury instructions by arguing in his brief as follows:\nThe Court of Appeals\u2019 decision in reciting the facts states: \u201cVicks testified that plaintiff was going between 10 and 20 miles per hour and defendant was going between 45 and 60 miles per hour.\u201d The trial court instructed the jury as to these same speeds even though it had earlier instructed the jury not to consider this statement as \u201cevidence of the truth.\u201d\nIt is true that Vicks did not testify regarding defendant\u2019s speed before the jury. A prior recorded statement of Vicks in which he did give defendant\u2019s speed as \u201c45 to 60 miles an hour\u201d was put before the jury by defendant during his cross-examination of Vicks and by stipulation of both parties purportedly for the purpose of impeaching this witness. The trial judge properly instructed the jury to consider Vicks\u2019 earlier recorded statement not as \u201cevidence of the truth of what was said at that earlier time\u201d but only upon the question of the witness\u2019 credibility at trial. Later while instructing the jury that operating a motor vehicle at a speed in excess of the speed limit was negligence per se, the judge said:\n(Now in that connection the plaintiff contends to you that the defendant on this occasion was exceeding the speed limit, he was doing more than 35 miles per hour, doing between 45 and 60, or 65 and 70.)\nThe defendant says and contends to you that he was not, he says and contends to you that he was only driving 30 to 35 miles per hour on this occasion.\nDefendant excepted to and assigned as error that portion of the above instructions in parentheses.\nThere is no merit to this assignment of error. Another witness, Ronald Revis, testifying for plaintiffs, did observe defendant\u2019s vehicle and gave,the jury his estimate of its speed prior to the collision at 65 or 70 miles per hour. Still another eyewitness, Clarence Grogan, stated in the jury\u2019s absence that in his opinion defendant\u2019s vehicle was traveling \u201cat least 65 miles an hour\u201d before the collision. For reasons known only to plaintiffs this testimony was not given to the jury. The testimony of Revis was enough to support the statement by the judge of plaintiffs\u2019 contention that defendant was exceeding the speed limit and was traveling between 65 or 70 miles per hour. The fact that the judge also mentioned the speeds 45 to 60 miles per hour in the absence of testimony as to these speeds could not possibly have prejudiced defendant. If mention of these speeds affected the jury at all, it probably did so to defendant\u2019s benefit. Defendant, furthermore, never suggested any correction of this statement at trial. At the close of his instructions the trial judge asked, \u201cNow is there anything further on either side ?\u201d Both plaintiffs and defendant replied that they had nothing to suggest to the court. In order for inaccuracies in the recitation of facts or contentions in jury instructions to be considered on appeal, they must be called to the attention of the trial judge in time for him to correct them at trial. Lewis v. Barnhill, 267 N.C. 457, 468, 148 S.E. 2d 536, 544 (1966).\nDefendant assigns as error this statement in the trial judge\u2019s instructions on the second (contributory negligence) issue: \u201cA proximate cause would result in liability, members of the jury.\u201d A finding by the jury of plaintiffs\u2019 negligence proximately causing the collision would, of course, mean no ultimate liability on the part of defendant. Almost immediately after the complained of statement, however, the trial judge instructed, in substance (except where quoted) : (1) if the jury found plaintiff negligent and her negligence a proximate cause of the collision, it would answer the second issue Yes; (2) if the jury failed to so find, it would answer the issue No; and (3) \u201cif you answer the second issue Yes . . . [having answered the first issue Yes] under those circumstances neither could recover [defendant had asserted a counterclaim] and that would end the lawsuit, in which event you would not consider the remaining issues. . . . However if your answer to the second issue is No, then you would take up and consider the third issue . . . [amount of plaintiffs\u2019 damages].\u201d Standing alone the complained of statement is meaningless. Taken in the context of subsequent full and proper instructions regarding the manner of answering the second issue and the consequences of either answer, the jury could not have been misled nor defendant prejudiced by the statement.\nWe have carefully examined all of defendant\u2019s assignments of error and find them to be wholly without merit. Defendant\u2019s appeal consists almost entirely of an inordinate straining at gnats. He has had a fair trial free from prejudicial error. It is time he paid the judgment rendered against him at that trial.\nThe decision of the Court of Appeals is\nAffirmed.", "type": "majority", "author": "EXUM, Justice." } ], "attorneys": [ "Cecil C. Jackson, Jr., for plaintiff appellees.", "Morris, Golding, Blue & Phillips by James N. Golding, for defendant appellant." ], "corrections": "", "head_matter": "JUDY BRADLEY PENLAND, and husband, BRUCE ELBERT PENLAND v. RONNIE GREEN\nNo. 83\n(Filed 29 January 1976)\n1. Trial \u00a7 16\u2014 stricken testimony \u2014final jury instructions proper\nThe trial court\u2019s final instructions to the jury to disregard stricken testimony were not ambiguous and confusing to the jury.\n2. Automobiles \u00a7 18 \u2014 entering public road from private drive \u2014 requirements of statute\nIn order to comply with G.S. 20-156 (a) (1975) the driver of a vehicle about to enter or cross a highway from an alley, building entrance, private road, or driveway is only required to look for vehicles approaching on the highway at a time when his lookout may be effective, to see what he should see, and to yield the right-of-way to vehicles on the highway which, in the exercise of reasonable care, he sees or should see are being operated at such a speed or distance as to make his entry onto the highway unsafe, by delaying his entry onto the highway until a reasonable and prudent man would conclude that the entry could be made in safety.\n3. Automobiles \u00a7 90\u2014 speed of defendant\u2019s vehicle \u2014 jury instruction\nIn an action for personal injury and property damages arising out of a two car collision the trial court\u2019s recitation of facts with respect to the speed of defendant\u2019s automobile was not prejudicial to defendant.\n4. Automobiles \u00a7 90\u2014 contributory negligence \u2014 jury instruction proper\nThe trial court\u2019s instruction on contributory negligence that, \u201cA proximate cause would result in liability,\u201d did not mislead the jury or prejudice defendant where the court subsequently gave full and proper instructions on the issue of contributory negligence.\nAppeal of right by defendant pursuant to General Statute 7A-30(2) to review the decision of the Court of Appeals reported in 24 N.C. App. 240, 210 S.E. 2d 505 (1974), which found no error, Campbell, J., dissenting, in the trial before Friday, J., at the February 11, 1974 Session of Buncombe County Superior Court. This case was docketed and argued as No. 68 at the Spring Term 1975.\nThis is a civil action for personal injury and property damages arising out of a two car collision. The evidence is fully recounted in the opinion of the Court of Appeals and will only be repeated here as necessary for an understanding of defendant\u2019s arguments.\nCecil C. Jackson, Jr., for plaintiff appellees.\nMorris, Golding, Blue & Phillips by James N. Golding, for defendant appellant." }, "file_name": "0281-01", "first_page_order": 301, "last_page_order": 306 }