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Edwards v. Cerro6/4/2002
PUBLISHED
Defendants appeal a judgment and an order on post-trial motions entered awarding damages to plaintiff in this personal injury suit. Plaintiff claimed that defendants owed damages for injuries resulting from a collision between his vehicle and machinery owned by defendant Ham Farms, Inc. ("Ham Farms") and operated by defendant Frederico Cerro ("Mr. Cerro").
On 12 December 1996, plaintiff filed a complaint against Ham Farms and Mr. Cerro alleging that the defendant's negligence caused a motor vehicle crash on 22 June 1996 in Greene County, North Carolina. Plaintiff was driving a Datsun pickup truck with his five-year old daughter when he collided with a Caterpillar forklift owned by Ham Farms and operated by Mr. Cerro. Both vehicles were traveling north on R.P. 1400 at approximately 9 p.m. In his complaint, plaintiff alleged: 7. That at the time above stated, as the plaintiff proceeded in a lawful manner on RP 1400, there was a collision with the forklift operated on the public highway by defendant Frederico Cerro. The defendant, Frederico Cerro was negligent in that he:
a. Operated the forklift on the said highway after sunset without any rear, tail light, or reflectors, rendering visibility impossible;
b. Otherwise operated the vehicle in a manner different from that of a reasonable and prudent person under the same or similar circumstance.
Plaintiff also alleged that Ham Farms, as the owner of the forklift and the employer of Mr. Cerro, was responsible for the injuries sustained by plaintiff. Ham Farms admitted in its Answer,
6. . . . that the defendant Frederico Cerro was an employee of the defendant Ham Farms, Inc. and was operating the forklift owned by Defendant Ham Farms, Inc. in the course of his employment with Ham Farms, Inc.; it is also admitted that defendant Frederico Cerro was operating said forklift with the knowledge, approval, and consent of defendant Ham Farms, Inc.
Ham Farms alleged as its "Second Defense" that plaintiff was contributorily negligent in his operation of his vehicle when he collided with the forklift operated by Mr. Cerro.
Plaintiff served interrogatories on both defendants, however, Mr. Cerro did not respond. On 2 March 1998, an Order to Compel was entered ordering Mr. Cerro to respond to plaintiff's interrogatories. Again, he did not respond and plaintiff moved the court to sanction both defendants, by, among other sanctions, striking Ham Farms' Answer from the record. The trial court ordered on 8 December 1998 that:
Frederico Cerro, individually, and as an employee and agent of Ham Farms, Inc. is sanctioned as follows:
1. The issue of negligence of Frederico Cerro is hereby answered in favor of the plaintiff Curtis Edwards. . . .
3. The issue of contributory negligence of the plaintiff Curtis Edwards, and the amount of damages, are to be reserved for trial.
As a consequence of ruling that both Mr. Cerro and Ham Farms were negligent, the Court did not submit that issue to the jury. The jury then found that plaintiff was not contributorily negligent and that plaintiff was entitled to recover $85,000 from defendants. The trial court then entered Judgment ordering defendants to pay plaintiff the amount determined by the jury in addition to attorney's fees and costs. The trial court denied Ham Farms' Motion to Set Aside and Motion for New Trial. Ham Farms appeals.
We note at the outset that the Notice of Appeal purports to be on behalf of both defendants, but only Ham Farms has assigned errors. However, Mr. Cerro has not assigned as error any portion of the judgments or orders pertaining to plai
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