Cook v. Turlington

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance with

the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA14-956

Filed: 1 September 2015

Mecklenburg County, No. 10 CVS 18586

MICHAEL H. COOK, Plaintiff,

v.

GINNY ELIZABETH TURLINGTON, Defendant.

Appeal by defendant from judgment entered 7 September 2012 and order

entered 9 January 2014 by Judge H. William Constangy in Mecklenburg County

Superior Court. Heard in the Court of Appeals 5 February 2015.

The Sasser Law Firm, P.A., by Charles McB. Sasser, for plaintiff-appellee.

Golding Holden & Pope, LLP, by James W. Pope, Robert J. Aylward and Brooks

T. Pope, for defendant-appellant.

GEER, Judge.

Defendant Ginny Elizabeth Turlington appeals from a final judgment in favor

of plaintiff Michael H. Cook and from an order denying defendant’s motion for a new

trial and judgment notwithstanding the verdict. On appeal, defendant argues that

the trial court erred in directing a verdict in favor of plaintiff on the issues of

defendant’s negligence and plaintiff’s contributory negligence. The evidence, when

COOK V. TURLINGTON

Opinion of the Court

viewed in a light most favorable to defendant, shows that defendant rear-ended

plaintiff’s motorcycle when plaintiff stopped at an intersection to yield to a fire truck.

Even assuming that the light was green in plaintiff’s and defendant’s favor,

and that defendant did not hear or see the fire truck approaching, the only inference

to be drawn from the evidence is that defendant was negligent by following too closely

or failing to keep a proper lookout. With respect to contributory negligence, we reject

defendant’s suggestion that a reasonable jury could find that plaintiff should have

proceeded through the intersection in front of the oncoming fire truck in order to avoid

being rear-ended by defendant. Accordingly, we hold that the trial court properly

entered a directed verdict in favor of plaintiff on the issues of negligence and

contributory negligence.

Facts

This lawsuit arises out of a rear-end collision that occurred on 3 September

2007 around 1:30 p.m. at the intersection of 36th Street and the Plaza in Charlotte,

North Carolina. Plaintiff filed suit on 3 September 2010, asserting a claim for

negligence against defendant and negligent entrustment against Jeffery Scott Smith,

the owner of the vehicle driven by defendant. On 18 October 2010, defendants filed

an answer in which they asserted that plaintiff was contributorily negligent. On 1

July 2011, plaintiff voluntarily dismissed his claim of negligent entrustment against

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Mr. Smith. The case proceeded to trial against defendant at the 6 August 2012 Civil

Session of the Superior Court of Mecklenburg County.

Based upon the evidence presented at trial, the following facts are undisputed.

On 3 September 2007, plaintiff was riding a motorcycle south down the Plaza.

Defendant was also heading south on the Plaza in her Nissan Pathfinder behind

plaintiff's motorcycle. The Plaza is a four lane road running north to south, with two

lanes in each direction and a median in the center. The speed limit on the Plaza is

35 miles per hour, and the road is very straight. The weather that day was clear and

dry.

Defendant first saw plaintiff’s motorcycle shortly after she turned onto the

Plaza. She and plaintiff were travelling in the same direction, in the left hand lane,

and at the same rate of speed. There were no other vehicles between defendant and

plaintiff and nothing blocking defendant’s view of plaintiff. When plaintiff reached

the intersection of the Plaza and East 36th Street, he did not proceed through the

intersection because he heard and saw a fire truck, with its lights flashing and siren

sounding, travelling east on East 36th Street approaching the intersection from his

right. The car in the right southbound lane also did not proceed through the

intersection. Defendant, however, did not see or hear the fire truck and did not brake

in time to avoid colliding into the back of plaintiff’s motorcycle.

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The remaining details regarding the circumstances leading to the collision are

disputed somewhat. At trial, in addition to plaintiff and defendant, the following eye

witnesses testified: David Ernest Dobbins, the fire truck engineer; Alicia Hendrix,

the driver of a green car in the right lane next to plaintiff; and Ulysses West, the

driver of a white truck that was travelling behind defendant.

According to plaintiff, prior to the collision, he was travelling south on the

Plaza in the right lane at about 35 miles per hour. About a block away from the

intersection of the Plaza and East 36th Street, plaintiff signaled and moved into the

left lane. Once plaintiff was in the left lane, or a little bit before, the light at the

intersection turned red, so he slowed down and came to a gradual stop at the white

line, next to a green vehicle that was stopped in the right lane. As soon as plaintiff

reached the intersection, he heard the fire truck and then saw the fire truck

approaching from his right approximately one block away. Plaintiff testified that

once he heard the fire truck, “I sat back on my motorcycle and crossed my arms and

looked at the lady beside me and I looked at the firetruck [sic] beside me also and just

stared at it just waiting for it to make its turn in front of us.” He estimated that he

was rear-ended approximately 30 seconds later.

Ms. Hendrix, the driver of the green car stopped in right lane next to plaintiff,

testified that when plaintiff pulled up in the left lane, the light was still red. She

estimated that she and plaintiff were stopped at the intersection for two or three

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Opinion of the Court

seconds before the light turned green. Once the light turned green, however, Ms.

Hendrix did not proceed through the intersection because she heard the fire truck

coming.

Mr. Dobbins, the fire truck driver, testified that he was travelling about 55 to

60 miles per hour down 36th Street. As he approached the Plaza, he slowed down to

gain control of the intersection. When he was about eight truck lengths away from

the intersection, he saw plaintiff look up and see him, and stop quickly. Mr. Dobbins

explained that plaintiff “stopped it quick. I don’t think he was going at a high rate of

speed when he stopped it. It was almost like he had just taken off or something, you

know. But I know he just -- he looked at me, boom, he stopped.” When Mr. Dobbins

saw that plaintiff’s motorcycle and Ms. Hendrix’s vehicle were both stopped, and that

plaintiff was looking over at him, he knew he had control of the intersection. When

he saw defendant’s vehicle approaching from behind plaintiff, he yelled to his captain

“She’s going to hit him” two or three times before the collision occurred. Mr. Dobbins

saw that defendant had a phone up to her ear, and he believed that she was distracted

and talking on the phone. It appeared to Mr. Dobbins that defendant did not attempt

to slow down or put on the brakes until after she had crashed into plaintiff’s

motorcycle.

Defendant and Mr. West testified for the defense. According to defendant, she

was travelling southbound on the Plaza at about 35 miles per hour and was about

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two or three car lengths behind plaintiff. She was listening to the radio at a “normal

or a little softer” volume and her windows were rolled up. As she approached 36th

Street, the light was green. She then saw plaintiff stop quickly, so she slammed on

her brakes and slid into him. She did not see or hear the fire truck until after the

collision. She denied that she was talking on the phone when the crash occurred.

Mr. West was driving a white truck southbound on the Plaza behind plaintiff

and defendant. Mr. West testified that after plaintiff moved into the left lane in front

of defendant, Mr. West lost full visibility of plaintiff’s motorcycle, but was certain that

“it wasn’t a full distance” between defendant’s vehicle and plaintiff’s motorcycle. As

the vehicles approached 36th Street, Mr. West had his windows rolled down and could

hear a fire truck siren, but could not tell where it was coming from. He does not recall

there being any vehicles already stopped at the intersection at any time up to the

point he heard the sirens. When Mr. West saw the fire truck, it was about a block

away from the intersection. He testified that as he approached the intersection, the

light was green, but that all the cars made an “immediate stop” when they heard the

fire truck sirens. Because of the position of his truck behind defendant’s vehicle, Mr.

West was unable to see the manner in which plaintiff stopped in front of defendant.

At the close of all evidence, plaintiff moved for a directed verdict as to the issues

of defendant’s negligence and plaintiff’s contributory negligence. The trial court

granted plaintiff’s motions and submitted only the issue of proximate cause and

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damages to the jury. In accordance with the jury’s verdict, the trial court, on 7

September 2012, entered a judgment against defendant in the amount of $535,732.65.

On 10 September 2012, defendant filed a Motion for New Trial and Judgment

Notwithstanding the Verdict pursuant to Rules 50(b) and 59 of the Rules of Civil

Procedure. A hearing was held on defendant’s motion on 18 February 2013, and, on

9 January 2014, the trial court entered an order denying the motion. Defendant

timely appealed both the judgment and the order to this Court.

Discussion

On appeal, defendant argues that the trial court erred in granting plaintiff’s

motion for a directed verdict against defendant as to negligence and contributory

negligence. “The 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.” Davis v. Dennis Lilly Co., 330 N.C. 314, 322, 411 S.E.2d

133, 138 (1991). “In determining the sufficiency of the evidence to withstand a motion

for a directed verdict, all of the evidence which supports the non-movant’s claim must

be taken as true and considered in the light most favorable to the non-movant, giving

the non-movant the benefit of every reasonable inference which may legitimately be

drawn therefrom and resolving contradictions, conflicts, and inconsistencies in the

non-movant’s favor.” Turner v. Duke Univ., 325 N.C. 152, 158, 381 S.E.2d 706, 710

(1989).

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Plaintiff’s Contributory Negligence

We first address whether the trial court erred in granting plaintiff’s motion for

a directed verdict as to plaintiff’s contributory negligence. “ ‘Contributory negligence

is negligence on the part of the plaintiff which joins, simultaneously or successively,

with the negligence of the defendant . . . to produce the injury of which the plaintiff

complains.’ ” Seay v. Snyder, 181 N.C. App. 248, 251, 638 S.E.2d 584, 587 (2007)

(quoting Bosley v. Alexander, 114 N.C. App. 470, 472, 442 S.E.2d 82, 83 (1994)).

“A defendant who asserts contributory negligence as a defense has the burden

of proving it.” White v. Greer, 55 N.C. App. 450, 452, 285 S.E.2d 848, 850 (1982).

Therefore, defendant has the burden of showing “ ‘(1) a want of due care on the part

of the plaintiff; and (2) a proximate connection between the plaintiff’s negligence and

the injury.’ ” Seay, 181 N.C. App. at 251, 638 S.E.2d at 587 (quoting Whisnant v.

Herrera, 166 N.C. App. 719, 722, 603 S.E.2d 847, 850 (2004)). Where, as here, the

plaintiff moves for a directed verdict on the defendant’s defense of contributory

negligence, the motion should be denied “if there is more than a scintilla of evidence

supporting each element of [defendants’] claim that plaintiff was contributorily

negligent[.]” Hawley v. Cash, 155 N.C. App. 580, 583, 574 S.E.2d 684, 686 (2002)

(internal quotation marks omitted).

Defendant asserts that plaintiff was negligent when he “abruptly and without

warning applied the brakes while the traffic signal was emitting a green light in their

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direction of travel.” We disagree. As plaintiff correctly points out, a green light “ ‘is

not a command to go, but a qualified permission to proceed lawfully and carefully in

the direction indicated. In other words, notwithstanding a favorable light, the

fundamental obligation of using due and reasonable care applies.’ ” McBride v.

Freeze, 268 N.C. 681, 683, 151 S.E.2d 661, 663 (1966) (quoting Hyder v. Asheville

Storage Battery Co., 242 N.C. 553, 557, 89 S.E.2d 124, 128 (1955)).

Pertinent to the facts in this case, N.C. Gen. Stat. § 20-156(b) (2013) requires

vehicles to yield the right-of-way to emergency vehicles at intersections, even when

the light is in their favor:

The driver of a vehicle upon the highway shall yield the

right-of-way to . . . fire department vehicles . . . when the

operators of said vehicles are giving a warning signal by

appropriate light and by bell, siren or exhaust whistle

audible under normal conditions from a distance not less

than 1,000 feet. When appropriate warning signals are

being given, as provided in this subsection, an emergency

vehicle may proceed through an intersection or other place

when the emergency vehicle is facing . . . a traffic light

which is emitting a . . . red light.

As explained by our Supreme Court, the duty to yield to an emergency vehicle

under this statute does not apply “until an appropriate warning has been directed to

him, and he has reasonable opportunity to yield his prior right. The audible sound

which the statute, G.S. 20-156(b), requires is such a sound as was in fact heard and

comprehended, or should have been heard and its meaning understood, by a

reasonably prudent operator called upon to yield the right of way.” McEwen Funeral

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Serv., Inc. v. Charlotte City Coach Lines, Inc., 248 N.C. 146, 151, 102 S.E.2d 816, 820-

21 (1958). Plaintiff, Ms. Hendrix in the green car in the right lane, and Mr. West in

the white truck behind defendant, each heard the fire truck’s siren and stopped their

vehicles to allow the fire truck to pass, despite the light being green in their favor. A

reasonable jury could not find that plaintiff's decision not to proceed through the

intersection was unreasonable under these circumstances.

Defendant argues, nevertheless, that plaintiff violated N.C. Gen. Stat. § 20-

154(a) (2013), which provides, in pertinent part, that:

The driver of any vehicle upon a highway or public

vehicular area before starting, stopping or turning from a

direct line shall first see that such movement can be made

in safety, and if any pedestrian may be affected by such

movement shall give a clearly audible signal by sounding

the horn, and whenever the operation of any other vehicle

may be affected by such movement, shall give a signal as

required in this section, plainly visible to the driver of such

other vehicle, of the intention to make such movement.

This statute imposes two duties upon a driver who intends to turn or stop: (1)

“the driver must ‘see that the movement can be made in safety[,]’ ” and (2) “the driver

must ‘give the required signal when the operation of any other vehicle may be

affected.’ ” Blankley v. Martin, 101 N.C. App. 175, 179-80, 398 S.E.2d 606, 609 (1990)

(quoting Clarke v. Holman, 274 N.C. 425, 429, 163 S.E.2d 783, 786 (1968)). A driver

may signal his intention to stop with a hand signal “or by any mechanical or electrical

signal device approved by the Division.” N.C. Gen. Stat. § 20-154(b). Our case law

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indicates that brake lights are an appropriate way to signal one’s intention to stop.

See Griffin v. Ward, 267 N.C. 296, 298, 148 S.E.2d 133, 135 (1966) (driver’s negligence

based on a violation of N.C. Gen. Stat. § 20-154 for failure to signal could be “based

upon the statement of the plaintiff that she saw no brake lights burning on the rear

of his car”); Warner v. Lazarus, 229 N.C. 27, 29, 47 S.E.2d 496, 498 (1948) (noting

driver “considered the flash of the brake light on the [preceding] car as a signal that

the driver of the car intended to stop or at least to slow down”). See also State v.

Heien, 366 N.C. 271, 275, 737 S.E.2d 351, 354 (2012) (noting that pursuant to N.C.

Gen. Stat. § 20-129, all motorists have a duty to ensure that they have at least one

functioning brake light). In this case, plaintiff has not pointed to any evidence that

the brake lights on plaintiff’s motorcycle did not properly function.

Furthermore, our Supreme Court has held that N.C. Gen. Stat. § 20-154 “is not

applicable where the driver has no choice.” Griffin, 267 N.C. at 298, 148 S.E.2d at

135. For example, in Griffin, the “defendant was confronted with a situation which

demanded that he stop because the line of cars in front of him had done so and he

could not turn left because of oncoming traffic.” Id. Additionally, “[i]t had been

raining and the windows of his car were up so he could give no hand signal[.]” Id.

Therefore, the only applicable provision of N.C. Gen. Stat. § 20-154 was defendant’s

duty to signal his intention to stop through the use of his brake lights. 267 N.C. at

298, 148 S.E.2d at 135.

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Here, as in Griffin, plaintiff was “confronted with a situation which demanded

that he stop” -- the approaching fire truck with its sirens blaring to which he had a

duty to yield. Id. Defendant suggests, nevertheless, that plaintiff should have

continued on through the intersection in front of the fire truck instead of stopping

suddenly and risking being rear-ended by the vehicle behind him. We disagree.

It is well established that a person “ ‘is entitled to assume and to act upon the

assumption that every other person will perform his duty and obey the law and that

he will not be exposed to danger which can come to him only from the violation of

duty or law by such other person.’ ” Powell v. Lloyd, 234 N.C. 481, 485, 67 S.E.2d

664, 666 (1951) (quoting Chaffin v. Brame, 233 N.C. 377, 380-81, 64 S.E.2d 276, 279

(1951)). As explained above, all drivers who actually heard, or should have heard,

the fire truck’s sirens had a corresponding duty to yield to the fire truck as it passed

through the intersection. Plaintiff heard the siren and was entitled to assume that

the vehicles around him would also hear the siren and comply with their duty to yield

to the fire truck, and stop their vehicles before reaching the intersection. At the very

least, he was entitled to assume that the vehicles behind him would maintain a safe

distance and exercise reasonable care to brake when they saw plaintiff and other

vehicles coming to a stop.

Defendant additionally cites Anderson v. Talman Office Supplies, Inc., 234

N.C. 142, 66 S.E.2d 677 (1951), and Blankley in support of her argument that plaintiff

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was contributorily negligent. In Anderson, the defendant was traveling in the left

hand lane when he heard an emergency vehicle approaching from behind with its

siren activated. 234 N.C. at 143, 66 S.E.2d at 679. The defendant moved right into

the center lane of traffic and was rear-ended by the plaintiff’s vehicle. Id. The

defendant argued that he was not negligent because he had a statutory duty pursuant

to N.C. Gen. Stat. § 20-157 to move to the right side of the road immediately upon

hearing the siren of an emergency vehicle. 234 N.C. at 144, 66 S.E.2d at 679. This

Court rejected defendant’s argument and held that the “approach of a police vehicle

giving a signal by siren did not nullify or suspend the provisions of G.S. 20-154, or

relieve the defendant . . . of the duty to ascertain, before turning to his right, that

such movement could be made in safety, or to signal any vehicle approaching from

the rear.” Id. at 145, 66 S.E.2d at 680.

The facts of Anderson are easily distinguishable from the facts of this case. In

Anderson, the defendant had a duty to pull to the right side of the road to allow an

emergency vehicle approaching from behind to pass him. The defendant changed

lanes suddenly and without signaling and pulled out in front of another vehicle in a

separate lane. The approaching vehicle had no reason to anticipate the defendant’s

sudden movements. Further, prior to the defendant’s sudden movement, there was

no risk of the defendant colliding with the emergency vehicle. Any delay in moving

to the right would have only resulted in delaying the emergency vehicle’s passage.

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In contrast, here, plaintiff stopped within his same lane of travel to comply

with his duty to yield to an emergency vehicle passing by in the intersection in front

of him. If the plaintiff had failed to yield to the fire truck, it could have resulted in

more than simply delaying the fire truck’s passage through the intersection -- it could

have resulted in a collision with the fire truck. Further, plaintiff did not switch lanes

and suddenly pull out in front of another vehicle. Rather, plaintiff simply came to a

stop in his own lane of travel. Even in the event that the vehicle behind plaintiff did

not hear the siren, it nevertheless had a duty to keep a proper lookout and maintain

a safe distance that “should be sufficient to enable the operator of the car behind to

avoid danger in case of a sudden stop or decrease in speed by the vehicle ahead under

circumstances which should reasonably be anticipated by the following driver.”

Beanblossom v. Thomas, 266 N.C. 181, 188, 146 S.E.2d 36, 42 (1966).

Blankley is also distinguishable from this case. In Blankley, the defendant

rear-ended the plaintiff’s vehicle after the plaintiff had stopped to make a left turn.

101 N.C. App. at 176-77, 398 S.E.2d at 607. The issue on appeal was whether the

trial court erred by instructing the jury on plaintiff’s contributory negligence. Id. at

178, 398 S.E.2d at 608. The Court recognized that N.C. Gen. Stat. § 20-154(b)

provides that “ ‘in all areas where the speed limit is 45 miles per hour or higher and

the operator intends to turn from a direct line of travel, a signal of intention to turn

from a direct line of travel shall be given continuously during the last 200 feet

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traveled before turning.’ ” Id. at 179, 398 S.E.2d at 609 (quoting N.C. Gen. Stat. § 20-

154(b) (1989)). Because conflicting evidence was presented concerning whether and

for how long the plaintiff turned on his left turn signal before stopping, this Court

held that the trial court properly submitted the issue of plaintiff’s contributory

negligence to the jury. Here, plaintiff was not traveling in an area where the speed

limit was 45 miles per hour and he did not intend to turn. Therefore, the provision

of N.C. Gen. Stat. § 20-154(b) requiring a turn signal does not apply, and Blankley is

inapposite.

Defendant has failed to point to any evidence that plaintiff’s decision to yield

to the fire truck was unreasonable given the evidence presented at trial. Although

defendant suggests that plaintiff should have driven through the intersection, risking

a collision with the fire truck, in order to avoid being rear-ended by defendant, she

points to no specific evidence in the record which suggests that plaintiff would have

had time to clear the intersection before the fire truck reached it. As stated by this

Court in Myrick v. Peeden, 113 N.C. App. 638, 643, 439 S.E.2d 816, 819 (1994)

(quoting Snead v. Holloman, 101 N.C. App. 462, 466, 400 S.E.2d 91, 93 (1991)),

“ ‘[e]vidence which merely raises conjecture on the issue of contributory negligence is

insufficient to go to the jury.’ ” We hold that the trial court did not err by granting a

directed verdict in favor of plaintiff on the issue of contributory negligence. See Jones

v. Holt, 268 N.C. 381, 387, 150 S.E.2d 759, 764 (1966) (holding in rear-end collision

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case evidence insufficient to go to jury on issue of plaintiff’s contributory negligence

where plaintiff stopped suddenly at yellow light instead of driving through

intersection, because plaintiff was “entitled to assume that the driver of the truck

behind her had observed the yellow light, would see her brake light and would

exercise reasonable care to bring his own vehicle to a stop”).

Defendant’s Negligence

We next address whether the trial court erred in granting plaintiff’s motion for

a directed verdict as to defendant’s negligence. Plaintiff argues that, even when

viewing the evidence in a light most favorable to defendant, the evidence establishes

that defendant was negligent in that she (1) failed to yield to an emergency vehicle,

(2) was following defendant too closely, and/or (3) failed to keep a proper lookout. We

agree.

“Fundamental to the right to operate any motor vehicle is the rule of the

prudent man declared in G.S. 20-140, that he shall operate with due care and

circumspection so as not to endanger others by his reckless driving.” McEwen

Funeral Serv., Inc., 248 N.C. at 150, 102 S.E.2d at 819. “The violation of statutory

rules of the road designed to provide for human safety is either negligence per se or

the basis on which a jury can find negligence if the statute declares its violation shall

not constitute negligence as a matter of law.” Id., 102 S.E.2d at 820 (internal citations

omitted).

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Plaintiff asserts that defendant was negligent per se because she failed to stop

for a fire truck in violation of N.C. Gen. Stat. § 20-157 (2013). This statute provides:

(a) Upon the approach of any . . . fire department

vehicle . . . giving warning signal by appropriate light and

by audible bell, siren or exhaust whistle, audible under

normal conditions from a distance not less than 1000 feet,

the driver of every other vehicle shall immediately drive

the same to a position as near as possible and parallel to

the right-hand edge or curb, clear of any intersection of

streets or highways, and shall stop and remain in such

position unless otherwise directed by a law enforcement or

traffic officer until the . . . fire department vehicle . . . shall

have passed. Provided, however, this subsection shall not

apply to vehicles traveling in the opposite direction of the

vehicles herein enumerated when traveling on a four-lane

limited access highway with a median divider dividing the

highway for vehicles traveling in opposite directions, and

provided further that the violation of this subsection shall

be negligence per se.

Id. In addition, N.C. Gen. Stat. § 20-156, quoted earlier, requires that vehicles yield

to emergency vehicles at intersections.

As previously noted, the duty to yield to an emergency vehicle under N.C. Gen.

Stat. § 20-156 does not apply “until an appropriate warning has been directed” to the

vehicle, such warning being “a sound as was in fact heard and comprehended, or

should have been heard and its meaning understood, by a reasonably prudent

operator called upon to yield the right of way.” McEwen Funeral Serv., Inc., 248 N.C.

at 151, 102 S.E.2d at 820-21. We believe this reasoning applies with equal force to a

driver’s duty to stop for an emergency vehicle under N.C. Gen. Stat. § 20-157.

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Defendant, in support of her argument that she was not negligent by failing to

yield to the fire truck, points to evidence that the light was green in her favor and

that she was unable to hear the siren. These facts, taken as true, do not establish

that defendant was not negligent. Our Supreme Court has explained that

“notwithstanding a green traffic light faced the operator of a motor vehicle, [a driver

may] not go forward blindly, but [is] required to use ordinary care, to maintain a

proper lookout, to keep his vehicle under reasonable control, and to drive his vehicle

at a speed reasonable and prudent under existing conditions.” Williams v.

Sossoman’s Funeral Home, Inc., 248 N.C. 524, 529, 103 S.E.2d 714, 718 (1958). With

respect to one’s duty to yield to emergency vehicles, the Court explained that

regardless whether the driver actually hears the siren, if the evidence shows “that

the siren was audibly sounded and that the [driver] was within range where he could

have heard the siren had he been listening, then the [driver] will be deemed to have

heard that which he should have heard and that which a reasonably prudent person

exercising due care would have heard.” Id. at 530, 103 S.E.2d at 718-19.

Whether the issue reaches the jury, however, is a separate question. In

Williams, the Supreme Court held that the trial court properly submitted to the jury

the issue of whether an ambulance had a right of way when entering an intersection

with a red light when there were discrepancies in the evidence with respect to the

siren. Id. at 529, 103 S.E.2d at 718. The Court explained:

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Notwithstanding the unequivocal evidence from

witnesses for defendants that they heard the siren when

the ambulance began its journey and continued to hear it

until the moment of the impact, the equally unequivocal

testimony of the occupants of the Chevrolet and another

witness just a few feet from the intersection that they did

not hear the siren until the ambulance was within a few

feet of the intersection is some evidence that the siren was

not in fact sounded in time to provide a warning to the

plaintiffs.

Id. at 528-29, 103 S.E.2d at 718. Therefore, “the court could not, as a matter of law,

hold that [the ambulance driver] had complied with the terms of the statute and was

entitled to the right of way.” Id. at 529, 103 S.E.2d at 718.

At trial, plaintiff, Ms. Hendrix, and Mr. West testified that they were able to

hear the fire truck’s siren. Mr. West, who was travelling behind defendant’s vehicle

and had his window rolled down, was able to hear the siren from approximately a

block away from the intersection. Ms. Hendrix was able to hear it from the right lane

of the intersection while her windows were rolled up. Mr. Dobbins, the fire truck

driver, testified that the siren was on and that it was designed to be heard from a

minimum distance of 1,000 feet away. Defendant, however, testified that she never

heard the siren at any time, and that she had her windows rolled up and she was

listening to music at a “normal or a little softer” volume. Defendant’s testimony is

some evidence that defendant could not have heard the siren even had she been

listening. As in Williams, this dispute in the evidence prevents the trial court from

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holding as matter of law that defendant breached a duty in violation of N.C. Gen.

Stat. §§ 20-156(b) or 20-157(a).

Nevertheless, defendant still owed “ ‘a minimal duty of care to keep a

reasonable and proper lookout in the direction of travel and see what [she] ought to

[have seen].’ ” Allen v. Efird, 123 N.C. App. 701, 703, 474 S.E.2d 141, 143 (1996)

(quoting Keith v. Polier, 109 N.C. App. 94, 99, 425 S.E.2d 723, 726 (1993)). “The duty

to maintain a proper lookout requires that the operator of a motor vehicle be

reasonably vigilant, and that he or she anticipate the presence of others.” Radford v.

Norris, 74 N.C. App. 87, 89, 327 S.E.2d 620, 622 (1985). Further, “[t]he driver of a

motor vehicle shall not follow another vehicle more closely than is reasonable and

prudent, having due regard for the speed of such vehicles and the traffic upon and

the condition of the highway.” N.C. Gen. Stat. § 20-152(a) (2013).

“ ‘Ordinarily the mere fact of a collision with a vehicle ahead furnishes some

evidence that the following motorist was negligent as to speed, was following too

closely, or failed to keep a proper lookout.’ ” Racine v. Boege, 6 N.C. App. 341, 345,

169 S.E.2d 913, 916 (1969) (quoting Clark v. Scheld, 253 N.C. 732, 737, 117 S.E.2d

838, 842 (1961)). Defendant correctly points out, however, that “[t]his is . . . by no

means an absolute rule to be mechanically applied in every rear-end collision case.”

Id. Nevertheless, in this case, even assuming that the light was green, that defendant

did not hear the fire truck siren, and that plaintiff stopped suddenly, there is no non-

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negligent explanation for why defendant was unable to stop in time to avoid rear-

ending plaintiff. The only inference to be drawn from the evidence is that defendant

was either following plaintiff too closely or she was not paying attention to what was

in front of her.

The undisputed evidence establishes that it was a clear day and defendant was

driving behind plaintiff in the same lane of travel with an unobstructed view of him.

Aerial photographs of the intersection show that there is a large parking lot on the

northeast corner of the Plaza and East 36th Street. In other words, there are no

buildings to obstruct the view of East 36th Street when driving south down the Plaza.

Mr. West testified that he was able to see the fire truck when both he and the fire

truck were about a block away from the intersection. Had defendant been keeping a

proper lookout, she would have been able to see the fire truck and would have been

able to anticipate plaintiff’s stop. Even assuming it was reasonable for her not to

have seen or heard the fire truck approaching, had she kept a reasonable distance

between herself and defendant, she would have been able to stop her vehicle in time

to avoid a collision, as each of the other vehicles at the intersection were able to do.

Because there is no evidence of any other explanation for the collision, we hold that

the trial court did not err in granting plaintiff’s directed verdict as to the issue of

defendant’s negligence. See Griffin, 267 N.C. at 299, 148 S.E.2d at 136 (holding

defendant entitled to nonsuit because plaintiff contributorily negligent where

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Opinion of the Court

plaintiff rear-ended defendant after he stopped suddenly because cars in front of him

did so, explaining that plaintiff was “charged with notice that the operation of each

car is affected by the one in front of it” and “must maintain such distance, keep such

a lookout and operate at such speed, under these conditions, that he can control his

car under ordinarily foreseeable developments,” and where “defendant did so and was

able to stop when it became necessary[, n]o less responsibility was cast upon the

plaintiff”). See also Geschwind v. Hoffman, 727 N.Y.S.2d 155, 156, 285 A.D.2d 448,

449 (N.Y. App. Div. 2001) (holding defendant negligent as matter of law where he

failed to come forward with non-negligent explanation for rear-end collision, and

proffered explanation that preceding vehicle stopped abruptly insufficient as matter

of law to rebut presumption of negligence); Abramowicz v. Roberto, 631 N.Y.S.2d 442,

443, 220 A.D.2d 374, 376 (N.Y. App. Div. 1995) (affirming directed verdict in favor of

plaintiff on issue of defendant’s negligence where defendant rear-ended plaintiff who

was stopped at red light).

We note that plaintiff cites Safron v. Council, ___ N.C. App. ___, 767 S.E.2d

149, 2014 WL 5587033, 2014 N.C. App. LEXIS 1137 (2014) (unpublished), disc. review

denied, ___ N.C. ___, 771 S.E.2d 305 (2015). That case is unpublished and not binding

on this Court. Additionally, the facts of that case are completely different from the

facts of this case. The issue in Safron was whether the defendant violated N.C. Gen.

Stat. § 20-149(a) (2013), when his vehicle struck the plaintiff as she was bicycling on

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Opinion of the Court

the side of the road and the defendant was attempting to overtake and pass her. ___

N.C. App. ___, 767 S.E.2d 149, 2014 WL 5587033, at *2, 2014 N.C. App. LEXIS 1137,

at *4. We do not find Safron instructive in deciding this case.

We hold that there is insufficient evidence that plaintiff acted negligently, and

that the trial court did not err in directing the verdict in favor of plaintiff on the issue

of contributory negligence. Because the same reasoning applies to the order denying

defendant’s motion for a new trial and motion for entry of judgment notwithstanding

the verdict, and defendant advances no new arguments with respect to that order, we

also affirm both the judgment and the order.

AFFIRMED.

Judges STEPHENS and DILLON concur.

Report per Rule 30(e).

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