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Zach v. Surry-Yadkin Electric Membership Corp.

Filed: May 18, 1982.

FAIRY ESTELLE ZACH, ADMINISTRATRIX OF THE ESTATE OF STEPHEN YON ZACH, DECEASED
v.
SURRY-YADKIN ELECTRIC MEMBERSHIP CORPORATION



Appeal by plaintiff from Freeman, Judge. Judgment entered 31 March 1981 in Superior Court, Surry County. Heard in the Court of Appeals 7 April 1982.

Wells, Judge. Judges Webb and Whichard concur.

Wells

In one of her assignments of error, plaintiff contends that the trial court erred in denying plaintiff's motion for a directed verdict on the issue of contributory negligence. Plaintiff also contends that the trial court failed to properly instruct the jury on the issue of contributory negligence. We agree with plaintiff's second contention and award plaintiff a new trial.

Plaintiff argues that the trial court erred in denying her motion for a directed verdict on the issue of contributory negligence, on the grounds that there was no evidence to support a jury determination that Stephen Zach was contributorily negligent.*fn1 We disagree.

On plaintiff's motion for a directed verdict on this issue, defendant's evidence must be taken as true and considered in the light most favorable to defendant, and plaintiff's motion was properly denied unless the evidence favorable to defendant on this issue was insufficient to justify a verdict for defendant. Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974); Howell v. Lawless, 260 N.C. 670, 133 S.E.2d 508 (1963). Although there were no witnesses to Stephen's death, the evidence tended to show that Stephen Zach attempted, by himself, on a windy day, to remove a twenty-foot-long antenna from his family's house in the presence of high voltage lines. There was conflicting evidence as to whether Stephen was aware of the dangers associated with the presence of the high voltage lines. Viewing this evidence in the light most favorable to defendant, Dickinson v. Pake, supra, we hold that the evidence was sufficient to support, but not compel, a jury finding that Stephen Zach was contributorily negligent.*fn2 Dennis v. Albemarle, 242 N.C. 263, 87 S.E.2d 561 (1955), reh. dis., 243 N.C. 221, 90 S.E.2d 532 (1955), Partin v. Power and Light Co., 40 N.C. App. 630, 253 S.E.2d 605 (1979), and cases cited therein, {PA}

Page 329} disc. rev. denied, 297 N.C. 611, 257 S.E.2d 219 (1979). We hold, therefore, that the trial court did not err in submitting this issue to the jury, and we overrule this assignment.

Plaintiff also contends that the trial court failed to properly instruct the jury on the issue of contributory negligence, by giving no specific examples of how plaintiff's decedent might have been contributorily negligent. In his charge, Judge Freeman first gave a general recital of the evidence presented by each party. Then, on the issue of decedent's contributory negligence, Judge Freeman instructed the jury as follows, in pertinent part:

The second issue reads, "If so, did Stephen You Zach, by his own negligence, contribute to his death?" Now in this issue, the burden of proof is on the defendant. This means that the defendant must prove by the greater weight of the evidence that the plaintiff -- Strike that. -- that the intestate, that is, Stephen Yon Zach, was negligent, that such negligence was a proximate cause of the intestate's own death. The test of what is negligence, as I've already defined and explained, is a reasonable and prudent doing of something that a reasonable prudent person would not have done, or not doing something that a reasonable prudent person should have done; and when the intestate's own negligence concurs with the negligence of the defendant and proximately causes the death, it's called "Contributory Negligence."

The law imposes upon a person a duty to use ordinary care to protect himself from injury. When a person realizes, or in exercise of reasonable care should realize, that another has violated the duty owed to him, he must be vigilant in attempting to avoid injury. If one who has the capacity to understand and avoid a known danger fails to take advantage of the opportunity, it would be contributory negligence. A person is charged not only with knowledge of what he sees, but knowledge of what he simply should see.

A person is required to use or exercise due care and to use his faculties to discover and avoid danger, care being commiserate (sic) with the danger or the appearance thereof.

So, finally, in this contributory negligence issue, I'll instruct you that if the defendant has proved by the greater

weight of the evidence that at the time of this death, the intestate, Stephen Yon Zach, was negligent in any one or in any manner, I'll say to you that if you find that Stephen Yon Zach was negligent and if the defendants further prove by the greater weight of the evidence that such negligence was a proximate cause of and contributed to the intestate's ...


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