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Lonon v. Talbert8/20/1991
be made in safety, Harris v. Parris, 260 N.C. 524, 526, 133 S.E.2d 195, 197 (1963), then the City is entitled to benefit from the same standard of foreseeability. Defendant City, however, was not in the position of the approaching driver operating a motor vehicle who of necessity must rely on fellow motorists' obedience to the rules of the road.
On the record in this case, the expert testimony as to the effect of the barrels and lack of a "no left turn" sign on the barrel at the intersection leaves room for reasonable minds to differ as to whether the driver's negligent execution of the left turn insulated any negligence on the part of defendant City. The trial court, therefore, did not err in denying the motions for directed verdict and judgment notwithstanding the verdict.
Defendant City also argues in the alternative that the trial judge erred in failing to instruct the jury on the doctrine of insulating negligence, as requested by defendant City. We agree and award a new trial on this basis.
The evidence in this case, in our view, permits the inference that the placement of the barrels and the signs, though negligent, would not have caused injury to plaintiff but for the negligence of defendant driver and that it was reasonably unforeseeable that by closing off the turn lane with barrels, a common traffic channelizing device, a driver would become so confused and excited by
the presence of the barrels as to execute a left turn without looking for oncoming traffic. The purpose of placing the barrels beside the turn lane and of putting the sign overhead was to prohibit left turns and to protect motorists in morning rush hour traffic. No evidence suggests that defendant driver's view of plaintiff's approach was in any manner obstructed by the barrels or that the barrels prevented defendant driver from exercising due care. In this regard the present case is clearly distinguishable from those cases where a governmental authority allowed shrubbery or some other obstacle to obscure a driver's view of a stop sign, thereby preventing the driver from determining which motorist had the right of way and creating the risk of the driver's wrongful conduct. See Cooper v. Town of Southern Pines, 58 N.C. App. 170, 293 S.E.2d 235 (1982); Stancill v. City of Washington, 29 N.C. App. 707, 225 S.E.2d 834 (1976).
The jury instruction on proximate cause mentioned foreseeability one time and gave little explanation as to the meaning of that term. With proper instructions as to the doctrine of insulating negligence, the jury may have reached a different result, and defendant City was prejudiced by the trial court's failure to give such instruction.
Because we reverse and remand for new trial on this assignment of error, we do not address defendant's remaining assignments.
New trial.
Disposition
New trial.
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