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Dixon v. Wall

Filed: February 16, 1982.

JACKIE DIANE DIXON
v.
SAMMY WALL



Appeal by plaintiff from Winberry, Judge. Judgment entered 23 January 1981 in Superior Court, Pitt County. Heard in the Court of Appeals 2 February 1982.

Webb, Judge. Judges Martin (Robert M.) and Wells concur.

Webb

The plaintiff presents two assignments of error. We consider one of them. The plaintiff assigns error to the court's instruction that she would be contributorily negligent if "she failed to apply her brakes and slow her vehicle to a stop after rounding a curve and observing a tractor." We believe this assignment of error has merit. The essence of this instruction is that when the plaintiff saw the tractor, she had to stop, even if it was within its own lane. The plaintiff had the right to assume, and to act on that assumption, that the driver of a vehicle approaching from the opposite direction would comply with statutory requirements before making a left turn across her path. See Petree v. Johnson, 2 N.C. App. 336, 163 S.E.2d 87 (1968). There was evidence in the case sub judice that Bryan Avery gave no indication that he was going to turn and that the plaintiff did not have time to stop in order to avoid an accident when he did turn. By charging that the plaintiff had to stop when she saw the tractor, the court allowed the jury

to find her contributorily negligent, even though she did not violate her duty of care under our case and statutory law. This error in the final mandate requires that we award the plaintiff a new trial. See State v. Prince, 49 N.C. App. 145, 270 S.E.2d 521 (1980).

The defendant contends that the instruction was proper because it applied the law to the evidence that the plaintiff failed to apply her brakes when she saw Bryan Avery turn the tractor to enter the driveway. We cannot assume from this instruction that the jury would know the court intended that they would find the plaintiff contributorily negligent if they found she did not apply her brakes when she saw the tractor turn to enter the driveway.

New trial.

Disposition

New trial.

19820216

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