FRED PRESTON WILLIAMS,
Plaintiff-Appellant,
v
.
JANAE MARIE DAVIS and BENEDETTA STEVENSON DAVIS,
Defendants-Appellees.
Herman L. Stephens, for plaintiff-appellant.
Frazier & Frazier, L.L.P., by Torin L. Fury, for defendants-
appellees.
McGEE, Judge.
Fred Preston Williams (plaintiff) filed a complaint in June
2000 alleging that Janae Marie Davis failed to operate the
headlights on her vehicle while driving after sunset, failed to
keep a reasonable lookout, failed to keep her vehicle under
control, failed to reduce speed, and failed to exercise due care,
which proximately resulted in a collision between the vehicle
operated by plaintiff and the vehicle operated by Janae Davis and
owned by Benedetta Stevenson Davis (defendants). Plaintiff alleged
that, as a result of the collision, he sustained damages including
personal injury, medical expenses, loss of earning capacity, and
property damage.
Defendants filed an answer on 27 October 2000, alleging
plaintiff was contributorily negligent in failing to keep a properlookout, in failing to keep proper control of his vehicle, in
failing to start, stop, or turn his vehicle from a direct line
without first determining that such movement could be made in
safety, in violation of N.C. Gen. Stat. § 20-154, and in failing to
decrease his speed in violation of N.C. Gen. Stat. § 20-141(m).
The trial court entered a final pretrial order, dated 15
October 2001, which included stipulations by the parties that: on
12 May 1997 around 9:31 p.m., Janae Marie Davis was operating a
vehicle owned by Benedetta Stevenson Davis, in a southbound
direction on University Parkway in Winston-Salem, North Carolina;
plaintiff drove his vehicle onto University Parkway; and that the
vehicles collided on southbound University Parkway.
At the 15 October 2001 trial, evidence was presented that
plaintiff was attending a banquet for Avon representatives as a
guest of his wife at the Holiday Inn off University Parkway in
Winston-Salem on 12 May 1997. After the banquet, plaintiff drove
away from the Holiday Inn and entered University Parkway from
Mercantile Drive around 9:31 p.m. where his vehicle was struck by
the vehicle operated by Janae Davis as she traveled south on
University Parkway. Plaintiff testified that:
I . . . came to a full stop, and I
checked the traffic lights to my left and the
traffic lights to my right [farther] down
south on Parkway and they were both red; and
there was no traffic in the space in between
those two lights. So I proceeded to cross
University Parkway south with the intention of
turning left onto University Parkway north;
and I was going to proceed north . . . .
. . .
First of all I came to the full stop at
the exit from Mercantile Drive. I looked to
my left and checked the traffic lights and
looked for traffic, of course, and I did the
same thing to the right; and after I
determined that there was no traffic I pulled
straight across and--
. . .
I was in the -- almost -- just about
entering inside lane of Parkway south, when my
wife said "look out," and there was this car
about five or six feet from us and bingo I
didn't have any reaction time really.
. . .
The other vehicle slammed into me
broadside at the driver's side.
The front of the vehicle operated by Janae Davis collided with the
driver's side of plaintiff's vehicle. Plaintiff testified that the
impact was "pretty terrific." The impact caved in the driver's
side of plaintiff's vehicle, trapping plaintiff in the driver's
seat until he was cut out of the vehicle.
Plaintiff testified that he looked for oncoming traffic before
entering the intersection, because "[o]therwise [he] would not have
proceeded across." Plaintiff testified that he presumed that Janae
Davis must have come off the exit ramp because, although he
acknowledged he did not actually see Janae Davis come off the ramp,
he did not see any vehicular traffic in the two through lanes when
he entered the intersection. Martha Joyce (Ms. Joyce) testified
she saw the collision from the front of the Holiday Inn,
approximately two hundred to four hundred feet from the site of the
collision. Ms. Joyce contradicted herself during her testimony.
Ms. Joyce stated once that the vehicle operated by Janae Davis cameoff the exit ramp; but on re-cross Ms. Joyce stated that the
vehicle was coming south in the through lanes of University Parkway
and that she saw the vehicle when it was one intersection back from
the intersection where the collision occurred.
Ms. Joyce testified that the headlights of the vehicle
operated by Janae Davis were not burning and that the vehicle was
going "a little more than 45" miles per hour, although she could
not state a specific speed of the vehicle. Ms. Joyce testified it
was not quite dark at the time of the collision and she could
clearly see the vehicle operated by Janae Davis as it traveled down
University Parkway. Ms. Joyce testified that there were numerous
lights in the area where the collision occurred, including lights
in the parking lot of the Nissan dealership located across from the
Holiday Inn, lights in the Holiday Inn parking lot, and street
lights on University Parkway. In response to questioning by
defendants' attorney, Ms. Joyce agreed with his statements that the
Nissan dealership was "lit up like a Christmas tree" and that there
was "an awful lot of light out on that roadway" at the time of the
collision. Plaintiff introduced a videotape of University Parkway,
which both Ms. Joyce and plaintiff testified fairly and accurately
depicted the collision scene at the time of the collision. Ms.
Joyce testified that she had no difficulty in seeing the vehicle on
the videotape. Plaintiff also testified that while the tape was
playing, he was able to see all of the landmarks on the roadway,
including an unlighted street sign, the median, two signs in the
median, trees and leaves in trees that were approximately fiftyyards away, as well as a vehicle traveling in the same direction as
the vehicle operated by Janae Davis on 12 May 1997.
Defendants moved for a directed verdict at the close of
plaintiff's evidence at trial, stating:
Your Honor I understand the plaintiff to
have rested at the close of their evidence.
At this time, I would like to make a motion
for a directed verdict on the issue of
plaintiff's contributory negligence.
Defendants' attorney summarized the testimony of plaintiff and Ms.
Joyce and stated that:
Based on that evidence we feel that Mr.
Williams violated [N.C.G.S. §] 20-158(b)(1),
where it states when a stop sign has been
erected or installed at an intersection, it
shall be unlawful for the driver of any
vehicle to fail to stop in obedience thereto
and yield the right of way to vehicles
operating on a designated main-traveled or
thru highway. That fits perfectly with the
facts that have been described by Mr. Williams
and Mrs. Joyce on the witness stand. As such
we feel that Mr. Williams violated that
statute and was negligent and the court should
find him to be contributorily negligent as a
matter of law. Thank you.
Defendants' attorney further stated that:
It is our contention[] focusing solely on
the conduct of Mr. Williams and based on the
statute his obligation to stop and yield to
oncoming traffic that he was negligent.
Now as Your Honor knows and I don't have
to say it for the record, you do not have to
prove his negligence was the sole proximate
cause of the accident. In this incident, all
we have to prove is that it was a proximate
cause of the accident. I believe the evidence
amply demonstrates his failure to yield to an
oncoming vehicle that is clearly visible is
sufficient to find him contributorily
negligent. Thank you.
The trial court granted defendants' motion for a directed
verdict, stating:
Well I have given it considerable
thought. I'm going to allow the Defendant[s']
motion for Directed Verdict on the
contributory negligence of the Plaintiff as
argued by the defense counsel.
The trial court entered an order dated 26 October 2001 granting
defendants' motion for a directed verdict. The trial court also
dismissed plaintiff's complaint with prejudice. Plaintiff appeals
from this order.
Plaintiff argues two assignments of error, claiming that the
trial court's entry of the 26 October 2001 order granting
defendants' motion for directed verdict was in error. Although
inartfully worded, when viewed in conjunction with plaintiff's
brief, the gist of these assignments are that (1) defendants were
not entitled to judgment dismissing plaintiff's case as a matter of
law and (2) that the evidence, viewed in a light most favorable to
the plaintiff, does not establish that plaintiff was contributorily
negligent. Plaintiff addressed both of these assignments of error
in one argument in his brief and we, too, will address them
together.
When ruling on a motion for a directed verdict, the trial
court must consider "'whether the evidence, when considered in a
light most favorable to [the non-moving party], was sufficient for
submission to the jury.'" Smith v. Wal-Mart Stores, 128 N.C. App.
282, 285, 495 S.E.2d 149, 151 (1998) (quoting Kelly v. Harvester
Co., 278 N.C. 153, 157, 179 S.E.2d 396, 397 (1971)). The non-moving party "'must receive the benefit of every inference which
may reasonably be drawn in his favor.'" Hill v. Williams, 144 N.C.
App. 45, 54, 547 S.E.2d 472, 477, disc. review denied, 354 N.C.
217, 557 S.E.2d 531 (2001) (quoting Hicks v. Food Lion, Inc., 94
N.C. App. 85, 88, 379 S.E.2d 677, 679 (1989)).
Where more than one conclusion can reasonably be drawn from
the evidence, such a determination should be left for the jury.
Maness v. Construction Co., 10 N.C. App. 592, 598, 179 S.E.2d 816,
819, cert. denied, 278 N.C. 522, 180 S.E.2d 610 (1971). Although
a directed verdict in a negligence case is "rarely proper,"
Stallings v. Food Lion, Inc., 141 N.C. App. 135, 138, 539 S.E.2d
331, 333 (2000), a directed verdict is appropriate on the basis of
contributory negligence in cases where "the evidence taken in the
light most favorable to plaintiff establishes [his] negligence so
clearly that no other reasonable inference or conclusion may be
drawn therefrom." Rappaport v. Days Inn, 296 N.C. 382, 384, 250
S.E.2d 245, 247 (1979) (citations omitted), overruled in part on
other grounds by Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882
(1998). "The negligence of the plaintiff . . . need not be the
sole proximate cause of the injury; if such negligence contributes
as one of the proximate causes of the injury, then it suffices to
bar any recovery." Industries, Inc. v. Tharpe, 47 N.C. App. 754,
761, 268 S.E.2d 824, 829, disc. review denied, 301 N.C. 90, 273
S.E.2d 311 (1980) (citing Holland v. Malpass, 255 N.C. 395, 121
S.E.2d 576 (1961) and Cook v. Winston-Salem, 241 N.C. 422, 85
S.E.2d 696 (1955)). "'[A] motion for a directed verdict shall state the specific
grounds therefor.'" Clary v. Board of Education, 286 N.C. 525,
528, 212 S.E.2d 160, 162 (1975) (quoting N.C. Gen. Stat. § 1A-1,
Rule 50(a)). Also, "an appellate court will not consider grounds
other than those stated to the trial court in reviewing the trial
court's ruling on the motion." Leatherwood v. Ehlinger, 151 N.C.
App. 15, 18, 564 S.E.2d 883, 886 (2002) (citations omitted).
As shown above, defendants' stated grounds for the motion for
directed verdict was that the evidence showed plaintiff was
contributorily negligent as a matter of law. Specifically,
defendants contended that plaintiff's actions violated the
requirements of N.C.G.S. § 20-158(b)(1), in that the statute
required plaintiff to stop and yield to oncoming traffic. The
trial court granted defendants' motion based on contributory
negligence as argued by defendants.
A violation of N.C.G.S. § 20-158(b)(1) is not negligence or
contributory negligence per se; however, it "may be considered with
the other facts in the case in determining whether a party was
guilty of negligence or contributory negligence." N.C. Gen. Stat.
§ 20-158(d) (2001). Thus, a violation of N.C.G.S. § 20-158(b)(1)
is "evidence of negligence; and when the proximate cause of injury,
is sufficient to support a verdict . . . ." Wooten v. Russell, 255
N.C. 699, 701, 122 S.E.2d 603, 604 (1961) (citations omitted).
The motorist who is required to stop and
ascertain whether he can proceed safely is
deemed to have seen what he would have been
able to see had he looked. "[H]is liability
to one injured in a collision with his vehicle
is determined as it would have been had helooked, observed the prevailing conditions and
continued to drive as he did."
Industries, Inc., 47 N.C. App. at 761, 268 S.E.2d at 829 (quoting
Raper v. Byrum, 265 N.C. 269, 274, 144 S.E.2d 38, 41 (1965)).
In Raper, our Supreme Court stated that:
The plaintiff's evidence permits no other
reasonable conclusion but that his intestate
brought his automobile to a stop at a point
where he had an unobstructed view of the
defendants' automobile approaching on the
dominant highway, and that he resumed his
progress into the intersection at a very slow
rate of speed when the defendants' automobile
was so near to the intersection and moving at
such a speed that in the exercise of
reasonable prudence he should have seen that
he could not cross in safety. His entry into
the intersection in this manner and under
these conditions was negligence and was one of
the proximate causes of the collision and of
his death, if not the sole proximate cause
thereof.
Raper, 265 N.C. at 276, 144 S.E.2d at 43.
The cases plaintiff has cited in support of his argument that
the trial court's grant of a directed verdict is contrary to the
case law in this state, including Wooten v. Russell, 255 N.C. 699,
122 S.E.2d 603 (1961), Primm v. King, 249 N.C. 228, 106 S.E.2d 223
(1958), and Hawes v. Refining Co., 236 N.C. 643, 74 S.E.2d 17
(1953), are all distinguishable from the present case. Each case
cited by plaintiff involved situations where the parties presented
conflicting evidence of the facts surrounding the collision. See
Wooten, 255 N.C. at 703, 122 S.E.2d at 605; Primm, 249 N.C. at 232,
106 S.E.2d at 226; and Hawes, 236 N.C. at 648, 74 S.E.2d at 20. As
is well established in this state, a motion for directed verdict
should not be granted when there is a conflict in the evidence,because it is the job of the jury to resolve such conflicts.
Maness, 10 N.C. App. at 598, 179 S.E.2d at 819.
In the present case, there is no conflict in the evidence to
be resolved by the jury. The evidence taken in a light most
favorable to plaintiff shows that: plaintiff stopped at the stop
sign, looked left and then right down University Parkway; plaintiff
failed to look at the exit ramp; Janae Davis was traveling slightly
faster than the forty-five miles per hour speed limit on University
Parkway; although Janae Davis might not have had her headlights
burning, there was sufficient light for plaintiff to see the
vehicle operated by Janae Davis approaching the intersection; and
plaintiff pulled out onto University Parkway in front of the
vehicle operated by Janae Davis when a reasonable person should
have seen it was unsafe to enter the intersection. See Raper, 265
N.C. at 276, 144 S.E.2d at 43. The evidence was sufficient to
support the trial court's conclusion that plaintiff was
contributorily negligent as a matter of law. We therefore affirm
the trial court's grant of a directed verdict for defendants.
Plaintiff's assignments of error are overruled.
Affirmed.
Judges McCULLOUGH and LEVINSON concur.
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