Reber v. Booth

EAGLES, Judge. Plaintiff first argues that the trial court erred by refusing to instruct the jury on the doctrine of last clear chance. Because the plaintiff has waived this issue, we do not reach its merits. “Unless and until the court is persuaded to modify its pretrial order, the parties are bound by their admissions and stipulations included in the order, and may not contradict its terms. They are bound by their agreement to limit the issues, and may not introduce at trial issues not among those included in the order.” Fowler v. Johnson, 18 N.C. App. 707, 711, 198 S.E.2d 4, 7 (1973) (quoting 3 J. Moore, Federal Practice Par. 16.19 (2nd ed. 1948), p. 1130). In Dawson v. Sugg, 32 N.C. App. 650, 233 S.E.2d 639 (1977) the trial court entered an order establishing a boundary line in a property dispute by adopting the report of a court appointed surveyor. No exception or appeal was taken from the order. Subsequently, the parties entered into an “ORDER ON PRETRIAL CONFERENCE” which stipulated that the court had established the property line between the parties by adopting the report of the surveyor. The “Order on Pretrial Conference” also contained a paragraph which set out the issues the defendants contended were pertinent to the case. Prior to introduction of evidence at trial, the trial court ruled that there was no question of fact to be submitted to the jury concerning the boundary line between the parties. The defendants excepted to the court’s ruling. The report of the surveyor and the order adopting the report were read to the jury without objection. On appeal to this Court the defendants argued that the trial court erred by refusing to allow the jury to hear evidence governing the boundary dispute. This Court held: Had defendants properly followed through on the denials set forth in their answer, they would have been entitled to present evidence with regard to, and have the jury pass upon, the location of the boundary line. But we think the defendants waived that right. . . . [T]he fact remains that the trial court’s order of 30 September 1975 adopting the report of the surveyor and establishing the true boundary line became a valid and binding order when it was not challenged by defendants. They did [737] not except to or appeal from the order. Furthermore, they stipulated the provisions of the Order in the “ORDER ON Pretrial Conference.” In addition to that, at the pretrial conference they did not contend that they were entitled to an issue on the question of boundary location and the court submitted issues as contended by defendants. We hold that defendants waived the rights they now attempt to claim. . . . Id. at 654-55, 233 S.E.2d at 642. Here, the “ORDER ON PRE-TRIAL CONFERENCE” states in pertinent part: Pursuant to the provisions of Rule 16 of the North Carolina Rules of Civil Procedure, and Rule 7 of the North Carolina Rules of General Practice, a final Pre-Trial Conference was held in the above-entitled cause at which the undersigned counsel for all parties appeared; and as a result of this conference, stipulations were entered and matters were determined as follows: * * * 16. The Plaintiff contends that the contested issues to be tried by the jury are as follows: (a) Was the death of the Plaintiffs intestate, April Love Reber, caused by the negligence of the Defendants? (b) What amount of compensatory damages is the Plaintiff entitled to recover from the Defendants? This stipulation does not raise the doctrine of last clear chance. The trial court submitted issues to the jury as requested by the plaintiffs, together with an instruction on contributory negligence. Accordingly, we find no abuse of discretion or error of law in the trial court’s refusal to submit an issue to the jury based on the doctrine of last clear chance. E.g., Dawson v. Sugg, 32 N.C. App. 650, 233 S.E.2d 639 (1979); and Fowler v. Johnson, 18 N.C. App. 707, 198 S.E.2d 4 (1973). Plaintiff next argues that the evidence at trial was insufficient to support the jury’s verdict. Specifically, plaintiff argues that a child between the ages of 7 and 14 is presumed to be incapable of contributory negligence and may not be held contributorily [738] negligent as a matter of law, and that the defendants failed to present evidence from which the jury could have found that April “did not in fact use that care which a child of [her] age, capacity, discretion, knowledge and experience would ordinarily have exercised under the same or similar circumstances.” We disagree. Heather testified that she saw April cross Hwy 158 at least three times. Heather and Angela both testified that when they called April, April stopped and put her hands on her hips. Angela also testified that April looked at them. Mrs. Booth and Mrs. Windom both testified that April was standing in the travel lane. Officer Aidoock testified that the skid mark on the highway was in such a position that both wheels of Mrs. Booth’s vehicle would have been in the travel portion of the highway. This evidence was sufficient for the jury to find that April was standing in the travel portion of the highway, not paying attention to oncoming traffic, and not exercising the due care that a child of her age, capacity, discretion, knowledge and experience would ordinarily have exercised under the same or similar circumstances. This assignment is overruled. Affirmed. Judge LEWIS concurs. Judge WELLS dissents.