JAMES ANDREW HAWLEY,
Plaintiff
v
.
CHARLES SAMUEL CASH and ROSEWAY TRANSPORTATION, INC.,
Defendants
Jones, Martin, Parris & Tessener, P.L.L.C., by Hoyt G.
Tessener and Elizabeth C. Todd, for plaintiff-appellee.
Womble, Carlyle, Sandrige & Rice, P.L.L.C., by Clayton M.
Custer and Bryan D. Graham, and Roberts & Stevens, by Frank P.
Graham, Kenneth R. Hunt and Wyatt S. Stevens, for defendant-
appellants.
CAMPBELL, Judge.
Defendants, Charles Cash (“Mr. Cash”) and Roseway
Transportation, Inc., appeal from a judgment granting plaintiff,
James Hawley (“Mr. Hawley”), $2.5 million for personal injury and
$20,000 for property damages. Defendants appeal the denial of
their motion for new trial. On appeal, defendants contend that the
trial court erred in two ways: I. By granting plaintiff's motion
for directed verdict as to defendants' claim that plaintiff was
contributorily negligent in causing the collision; and II. By
denying defendants' motion for new trial because the damagesawarded were excessive, the evidence was insufficient to justify
the verdict, the jury manifestly disregarded the court's
instructions, and the verdict was contrary to law. We disagree.
Accordingly, we affirm the lower court's judgment.
On 17 August 1999, at around six o'clock in the morning,
defendant, an employee of Roseway Transportation, Inc., was driving
a tractor-trailer on Interstate 85 near Oxford. At approximately
the same time, plaintiff was driving his 1969 pickup truck to work.
Plaintiff entered Interstate 85 at exit 204. After plaintiff had
traveled seven-tenths of a mile north of exit 204, defendant hit
plaintiff's truck from behind, causing plaintiff's truck to cross
the median and overturn. The one independent eyewitness to the
accident, Julian Lowery (“Mr. Lowery”), testified that he was
driving north on Interstate 85 in the passing lane. Mr. Lowery
estimated that Mr. Cash was traveling at about 65 miles per hour
and that Mr. Hawley was driving at 45-50 miles per hour even though
this was a 65 mile per hour zone. Mr. Lowery testified that he
noticed Mr. Cash “had his cab light on, and was leaning a little
bit over to the inside, like he was getting something between the
seats or something.” After Mr. Lowery passed the tractor-trailer,
he “passed this pickup truck that was running slower than the
tractor and trailer.” When Mr. Lowery looked in his rearview
mirror after passing the pickup truck, he saw the tractor-trailer
hit the pickup truck “right dead center in the back end, and
knocked it across the median, and flipped it upside down.” The
parties stipulated that defendant Cash was negligent. Thus, theonly issue before the jury was what amount of compensatory damages
plaintiff was entitled to recover for personal injury and for
property damage. Mr. Cash died, of causes unrelated to the
accident, before service of the complaint. Roseway Transportation
was included as a defendant under the theory of respondeat
superior.
I. Contributory Negligence Issue
Defendants first argue that the trial court erred in granting
plaintiff's motion for directed verdict on defendants' affirmative
defense of contributory negligence. In defendants' amended answer
to plaintiff's amended complaint, defendants stated as an
affirmative defense:
Plaintiff was contributorily negligent in that
he traveled on an interstate highway at an
excessively slow speed, without activating his
four-way flashers. Said low speed was in
violation of G.S. § 20-141(c) and (h) or, in
the alternative, was less speed than a
reasonably prudent person would be using under
the circumstances.
In his reply, plaintiff “denie[d] the allegations of negligence .
. . and denie[d] that any negligence on [his] part . . .
contributed to or was the cause of his injury.”
In ruling on a motion for directed verdict, we apply the same
standard of review as on a motion for judgment notwithstanding the
verdict. Holcomb v. Colonial Associates, L.L.C., ___ N.C. App.
___, ___, 570 S.E.2d 248, 250 (2002). Appellate review requires
this Court to examine “'all the evidence in the light most
favorable to the nonmoving party,'” give that party “'the benefit
of every reasonable inference drawn therefrom'” and determine if“'the evidence is sufficient to be submitted to the jury.'” Branch
v. High Rock Realty, Inc., ___ N.C. App. ___, ___, 565 S.E.2d 248,
252 (2002) (quoting Fulk v. Piedmont Music Ctr., 138 N.C. App. 425,
429, 531 S.E.2d 476, 479 (2000)). The trial court correctly denies
a motion for directed verdict “'if there is more than a scintilla
of evidence supporting each element of the non-movant's claim.'”
Id. (quoting Norman Owen Trucking v. Morkoski, 131 N.C.App. 168,
172, 506 S.E.2d 267, 270 (1998)).
Furthermore, “[w]ith respect to contributory negligence as a
matter of law, '[t]he general rule is that a directed verdict for
a defendant on the ground of contributory negligence may only be
granted when the evidence taken in the light most favorable to
plaintiff establishes [plaintiff's] negligence so clearly that no
other reasonable inference or conclusion may be drawn therefrom.
Contradictions or discrepancies in the evidence even when arising
from plaintiff's evidence must be resolved by the jury rather than
the trial judge.'” Rappaport v. Days Inn, 296 N.C. 382, 384, 250
S.E.2d 245, 247 (1979) (quoting Clark v. Bodycombe, 289 N.C. 246,
251, 221 S.E.2d 506, 510 (1976)); see also Edwards v. Cerro, ___
N.C. App. ___, 564 S.E.2d 277 (2002).
In the subject case, the situation is unusual in that
plaintiff made the motion for directed verdict on defendants'
defense of contributory negligence at the close of all the evidence
at trial. In most cases that set out the applicable standard of
review, the defendant moves for a directed verdict on its
affirmative defense that the plaintiff is barred from recovery asa result of plaintiff's contributory negligence. Thus, the
evidence viewed in the “light most favorable to the non-moving
party,” is normally viewed in the light most favorable to the
plaintiff. Here, however, the evidence must be considered in the
light most favorable to defendants, since plaintiff was the moving
party. Therefore, “if there is more than a scintilla of evidence
supporting each element of [defendants'] claim” that plaintiff was
contributorily negligent, then the issue should have been submitted
for the jury to decide. Here, the trial court did not find that
sufficient evidence of plaintiff being contributorily negligent
exists such that the jury should have been allowed to decide. In
clarifying its granting of plaintiff's motion for directed verdict,
the trial court stated:
[T]he only evidence at all that could be
showing any negligence would be that [Mr.
Hawley] was operating [his truck] too slow
[sic] to . . . “impede the normal and
reasonable movement” of traffic . . . all the
evidence tends to show that the defendant,
Cash, was operating the tractor-trailer and
struck Mr. Hawley square in the . . . back of
the pickup truck. That there were no skid
marks. There was no evidence of any movement
of the tractor-trailer to avoid the []
striking of the pickup truck. There is
evidence that tends to show that Mr. Cash
didn't see the pickup truck before the impact
. . . The Court finds that Mr. Hawley has
testified . . . that he was proceeding fifty
(50) to fifty-five (55) at the time of the
collision. There is evidence that tends to
show that the . . . State trooper, who is an
experienced law enforcement officer involved
in investigating accidents . . . estimated
that Mr. Hawley was going about fifty (50)
miles per hour . . . The Court does find as a
fact that from all of the evidence that even
if Mr. Hawley was going forty (40) to forty-
five (45) miles per hour when it [sic] was notany minimum speed, that the Court finds that
this would not have impeded the normal and
reasonable movement of the traffic of someone
keeping a proper lookout, and keeping their
vehicle . . . under control, and not ramming
someone in the back. And the Court does find
as a fact that taking all of the evidence in
the light most favorable to the defendant in
this case, that even if the vehicle was going
. . . “approximately forty (40) miles per
hour,” [as Mr. Cash testified before he died],
that in considering all the evidence in this
case that the Court should not submit [the]
contributory issue to the jury. The Court
finds and rules as a matter of law that there
is insufficient evidence in this case for this
Court to allow an issue of contributory
negligence to go to the jury. That the only
possible issue of negligence on behalf of the
defendant would be driving . . . at a slow
speed to impede the normal and reasonable
movement of traffic, and the Court is going to
allow the directed verdict on contrib[utory
negligence].
The trial court found as a fact that Mr. Hawley was driving slower
than the posted speed limit and that no minimum speed limit was
posted. Driving slower than the speed limit is not unlawful unless
it is so slow as to “impede the normal and reasonable movement of
traffic” in violation of N.C. Gen. Stat. § 20-141(c) and (h). The
evidence produced at trial was not sufficient enough to show that
Mr. Hawley was contributorily negligent even by “a scintilla.” We
find no error in the trial court's ruling on this issue.
II. Excessive Damages Issue
Defendants' second argument is that the trial court erred in
denying his motion for new trial because the damages were excessive
and appeared to be the result of passion or prejudice, the evidence
was insufficient to justify the verdict, the jury manifestly
disregarded the court's instructions, and the verdict was contraryto law. It is has long been established that in reviewing the
lower court's denial of the defendant's motion for new trial, this
Court must decide whether the record “affirmatively demonstrates an
abuse of discretion.” Whaley v. White Consol. Indus., Inc., 144
N.C. App. 88, 92, 548 S.E.2d 177, 180, disc. rev. denied, 354 N.C.
229, 555 S.E.2d 277 (2001). N.C. Gen. Stat. § 1A-1, Rule 59
provides that new trial may be granted for:
Manifest disregard by the jury of the
instructions of the court; . . . Excessive or
inadequate damages appearing to have been
given under the influence of passion or
prejudice; . . . Insufficiency of the evidence
to justify the verdict or that the verdict is
contrary to law[.]
N.C. Gen. Stat. § 1A-1, Rule 59(a)(5)-(7) (2001). In the case at
bar, in denying defendants' motion for new trial, the trial court
noted in its findings that defendants “argued for a new trial on
the issue of personal injury damages only and abandoned [their]
motion for a new trial on the issue of property damages.” Thus,
defendants' request is based solely on the $2.5 million verdict
awarded to plaintiff for personal injury damages. The trial court
made the following findings at the hearing on the motion for new
trial:
9. The Court . . . finds that there is
evidence presented to the jury which tends to
show . . . there was a permanent injury, a
brain damage, as [a] result of this collision
. . . [and] that Plaintiff could not continue
to work, and even though he was 76 years old
and had worked regularly and had a life
expectancy of 9.5 years, that he had spent
quite a deal of his time working in his yard
and in his flower garden and he was unable to
pursue those interests . . . that his normal
relations and fellowship with his family andfriends were diminished as a result of the
injuries he received in this collision.
10. The Court finds that the law is that a
motion for new trial is in the sound
discretion of the trial court.
11. The Court finds that there was sufficient
and admissible evidence for this jury to award
the $2.5 million in damages for the personal
injuries suffered by Plaintiff.
12. The Court finds that there is nothing in
the record to indicate that the jury
disregarded the Court's instructions or that
the award for personal injury damages was
excessive. And the Court does find that there
was sufficient evidence to justify the verdict
and that the verdict was not contrary to law.
13. The Court finds that this trial court is
not empowered to change a jury's verdict,
however the Court has sound discretion to
either order a new trial or deny a motion for
new trial.
14. The Court in recalling the actual trial
of this matter and the evidence presented,
finds as a fact that there is nothing to
indicate that the jury disregarded the
instructions of the Court. That this Court
specifically told the jury they were not to
award any damages based on pity or sympathy.
The Court does find that there was evidence
presented to this jury to justify the verdict
that the jury gave, and there is nothing in
the evidence, or the record of this trial, to
show that the jury acted under passion or
prejudice.
Absent an obvious “substantial miscarriage of justice,” this Court
cannot overturn a trial court's denial of a motion for new trial.
Whaley at 92, 548 S.E.2d at 180 (citation omitted). From our
review of the record, we find no abuse of discretion in the trial
court's ruling on defendants' motion for new trial. We affirm.
Finally, plaintiff appealed the trial court's granting of
defendants' motion for partial summary judgment on plaintiff's
punitive damages claim. Plaintiff's appeal is based on defendants'alleged spoliation of documents that plaintiff could have utilized
in establishing a claim for punitive damages.
In reviewing a trial court's ruling on a motion for summary
judgment, we must determine whether: “(1) the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, show that there is no genuine issue
as to any material fact; and (2) the moving party is entitled to
judgment as a matter of law.” Adams v. Jefferson-Pilot Life Ins.
Co., ___ N.C. App. ___, ___, 558 S.E.2d 504, 506-7, disc. rev.
denied, 356 N.C. 159, 568 S.E.2d 186 (2002) (quoting Von Viczay v.
Thoms, 140 N.C. App. 737, 738, 538 S.E.2d 629, 630 (2000), aff'd,
353 N.C. 445, 545 S.E.2d 210 (2001) (citations omitted)). Based on
a careful review of the record, we conclude that the trial court
did not err in its ruling to grant defendants' summary judgment
motion. Plaintiff did not forecast any evidence that would have
supported a punitive damages claim. Further, plaintiff points to
nothing that might be contained in the discovery material he claims
was inappropriately destroyed which would support such a claim. We
conclude that defendants were entitled to judgment as a matter of
law as to this issue and the trial court correctly granted
defendants' motion for partial summary judgment.
Affirmed.
Judges TIMMONS-GOODSON and HUDSON concur.
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