LOUENE F. HORNE,
Plaintiff,
v
.
CAROL VASSEY,
Defendant.
Brent Adams & Associates, by Brenton D. Adams, for plaintiff
appellant.
Bailey & Dixon, L.L.P., by David S. Wisz, for defendant
appellee.
TIMMONS-GOODSON, Judge.
Louene Horne (“plaintiff”) appeals from final judgment entered
by the trial court upon a jury verdict finding that plaintiff was
entitled to no recovery on her suit for personal injuries suffered
in an automobile accident with Carol Vassey (“defendant”). The
trial court further denied plaintiff's motion for a new trial. For
the reasons stated herein, we conclude that the trial court
committed no error in rendering its judgment.
The pertinent facts of the instant appeal are as follows: On
24 April 2000, plaintiff filed a complaint in Wake County Superior
Court alleging that defendant drove her automobile in a negligent
manner, resulting in a collision with plaintiff's vehicle. As a
result of the collision, plaintiff alleged she suffered serious andpermanent medical injuries.
Plaintiff's case came before the jury on 12 and 13 February
2002, at which time the following evidence was presented:
Plaintiff testified that, in the early morning hours of 13 January
1999, she drove her automobile onto an exit ramp of Interstate 40
in Raleigh, North Carolina. While plaintiff was stopped at an
intersection at the top of the exit ramp, defendant's vehicle
struck the rear of plaintiff's automobile. The impact “jerked
[plaintiff's] head and neck,” and she experienced “pain [and]
instant headache from the pain in [her] neck.” Following the
collision, plaintiff and defendant exchanged personal contact and
insurance information, but did not summon law enforcement to the
scene of the accident. Defendant promised to compensate plaintiff
for the damage to her automobile. Plaintiff did not inform
defendant of any personal injury, however, nor did plaintiff seek
immediate medical attention for the pain she was experiencing.
Later that afternoon, plaintiff visited her chiropractor, Dr.
Holcomb, who examined and treated plaintiff's neck. Plaintiff
testified that she suffered constant pain in her neck and head for
the following four weeks, and that she was unable to return to work
during this time because of her injuries. Plaintiff eventually
stopped working “because it was too strenuous.” According to
plaintiff, she continues to suffer debilitating pain in her head
and neck and remains unable to work. Moreover, according to
plaintiff, her pain prevents her from performing daily household
activities and interferes with her sleep. Plaintiff submitted into evidence the deposition of Dr.
Rudolph Maier, a neurologist who initially examined plaintiff on 26
February 1999. In Dr. Maier's opinion, plaintiff suffered a ten
percent permanent disability to her entire body as a result of the
13 January collision. Dr. Maier stated that he relied upon
plaintiff's statements to him concerning her medical history and
description of the collision in reaching this opinion.
During cross-examination, plaintiff testified that after the
collision, defendant “was concerned whether [she] was hurt” but
that plaintiff assured defendant that she “thought she was okay”
and did not need medical assistance. Plaintiff also admitted that
she suffered from numerous medical problems, including
hypertension, degenerative joint disease, osteoporosis, chronic
anxiety and depression, and coronary artery disease. Plaintiff
conceded that she also had a pre-existing shoulder injury for which
she took “up to six Darvocet a day . . . without any relief,” and
that she had been treated for ongoing problems with her lower back
since 1990. Several months before the collision, plaintiff was
diagnosed with “chronic pain syndrome.” Further, plaintiff was
admitted to a hospital in May of 1999 after suffering a “mini-
stroke.” Contrary to plaintiff's representations of constant neck
pain, an examining physician reported on 2 March 2000 that
plaintiff's neck was “supple [and] non-tender.” Another treating
physician reported on 21 March 2000 that plaintiff's neck was
“supple, [with] full range of motion.”
Defendant testified that on 13 January 1999 she stopped behindplaintiff's automobile at the top of the exit ramp. Defendant “saw
[plaintiff's] car move slightly, and I was prepared to follow out
into the traffic. I took my foot off the brake and I rolled into
the back of her car.” According to defendant, her vehicle was
traveling at a rate of speed of approximately one or two miles per
hour at the point of impact. Defendant testified that there was no
damage to her vehicle, but that the bumper of plaintiff's
automobile “was pushed out of place by a few inches.” When
defendant asked plaintiff whether she “was all right,” plaintiff
responded, “Yes, I think so.” Defendant spoke with plaintiff for
ten minutes following the accident, during which time plaintiff did
not mention any pain or discomfort, nor showed signs of any
physical distress.
Upon consideration of the evidence, the jury found that
plaintiff was entitled to no recovery from defendant, and the trial
court entered judgment accordingly. Counsel for plaintiff moved
for a new trial, which motion the trial court denied. From the
judgment of the trial court, plaintiff appeals.
_____________________________________________________
On appeal, plaintiff argues that the trial court erred in (1)
allowing into evidence photographs of plaintiff's automobile; and
(2) denying plaintiff's motion for a new trial. For the reasons
stated herein, we conclude that these assignments of error have no
merit, and we find no error in the judgment of the trial court.
By her first assignment of error, plaintiff contends the trial
court erred in allowing defendant to introduce into evidencephotographs of plaintiff's automobile. Plaintiff argues that
defendant failed to lay a proper foundation for introduction of
this evidence, and that it was therefore improperly admitted.
Plaintiff asserts that the improper admission of the photographs
prejudiced her case, requiring a new trial.
At trial, counsel for defendant showed plaintiff four
photographs labeled as Defendant's Exhibits 1-A, 1-B, 1-C and 1-D.
The following exchange then occurred:
[Defense counsel]: Show you what I've marked
as Defendant's Exhibit 1-A, 1-B, 1-C and 1-D,
ask you to take a look at those and see if you
can identify what they are.
[Plaintiff]: I believe this picture, me
sitting in my car and Donna standing at the
back, I believe that was taken in Angier. Is
that what you wanted me --
Q: Are those, in fact, four pictures of your
car showing how it looked?
A: That's my car, yes, sir.
Q: They were taken about the day after the
accident?
A: Yes, sir.
Q: Those four pictures accurately show how
your vehicle looked following this collision;
is that correct?
A: No.
Q: How was that not correct?
A: It is not correct because there's no
damage here. This was taken after the impact,
after the car was repaired.
Q: So you had your car repaired the same day
of the accident?
A: No, I did not.
Q: Let me understand this --
A: No, I did not have my car repaired the
same day as the accident, but this doesn't
show accurately what had happened. This was
pushed up more here on the right side and the
bumper was up against the trunk lid.
. . . .
This does not show as I remembered. I see
here, where the bumper is pull[ed] out from
the car, up -- on the back panel here behind
the back door because that's a four door -- I
don't remember, I don't have the car any
longer. In fact, I didn't have it maybe two
months after the accident or three before it
was repossessed, but I don't remember this
looking as if it had not been damaged. And
this picture, the back, the bumper here, it
shows it on the side and here where it was
lifted, it doesn't show any damage here
raising it up where it interfered with opening
the trunk.
Q: How about the other two pictures that we
have there?
A: This one, the back of the car shows the
accident -- the damage done to the impact, the
bumper is moved from its original position and
broken, the cover was broken in this picture.
Q: Which picture is that? Refer to the
exhibit number. Can you refer to the exhibit
number?
A: Yes, sir, C.
Q: So exhibit 1-C, so you agree in that one
it accurately reflects the vehicle?
A: From this side, yes, sir, from the side
view.
Q: How about 1-D?
A: In 1-D, you can see where the bumper is
broken, you can see where the little space up
above the bumper is, near the tail light is
damaged, but it does not show the damage onthe trunk as I remember it.
At the close of defendant's evidence, defendant moved to
introduce the photographs of plaintiff's vehicle. The trial court
admitted the photographs into evidence over plaintiff's objection.
Plaintiff now argues that, because she testified that the
photographs did not accurately portray the full extent of the
damage to her automobile following the accident, the photographs
were not properly authenticated. We do not agree.
Generally speaking, photographs may be used to illustrate
anything that a witness may competently describe in words. See
Smith v. Dean, 2 N.C. App. 553, 563, 163 S.E.2d 551, 557 (1968).
In order for a photograph to be admitted into evidence, the
accuracy of a photograph must be demonstrated by extrinsic evidence
that the photograph is a true representation of the scene, object
or person it purports to portray. See id.
“The correctness of such representation may be
established by any witness who is familiar
with the scene, object, or person portrayed,
or is competent to speak from personal
observation. . . . Whether there is sufficient
evidence of the correctness of a photograph to
render it competent to be used by a witness
for the purpose of illustrating or explaining
his testimony is a preliminary question of
fact for the trial judge.”
Id. (quoting State v. Gardner, 228 N.C. 567, 573, 46 S.E.2d 824,
828 (1948) (citations omitted). Testimony that the exhibit is a
fair and accurate portrayal of the scene at the time of the
accident is ordinarily sufficient to authenticate the exhibit. See
Thomas v. Dixson, 88 N.C. App. 337, 344, 363 S.E.2d 209, 214
(1988). “Authentication does not, however, require strict,mathematical accuracy, and a lack of accuracy will generally go to
the weight and not the admissibility of the exhibit.” Id.; Kepley
v. Kirk, 191 N.C. 690, 693, 132 S.E. 788, 790 (1926). “Where there
is conflicting evidence as to the similarity of conditions at the
time of the accident and at the time the photographs are made, the
admissibility of the exhibits is a matter within the sound
discretion of the trial judge.” Sellers v. CSX Transportation,
Inc., 102 N.C. App. 563, 565, 402 S.E.2d 872, 873 (1991).
In the instant case, plaintiff verified that the photographs
depicted her vehicle, and that the photographs were made the day
after the accident. She further stated that she did not have the
car repaired the same day as the accident. Plaintiff agreed that
Exhibit 1-C, depicting the passenger-side of her vehicle,
accurately showed the damage to the automobile. Plaintiff also
testified that Exhibit 1-D was an accurate representation, with the
exception of alleged damage to the trunk of the automobile. We
conclude that the trial court did not abuse its discretion in
admitting the photographs. Defendant clearly established that the
photographs were of plaintiff's vehicle, and that they were made
the day following the accident. Although plaintiff disputed the
accuracy of the damage to her vehicle as portrayed in the
photographs, such dispute was a matter of the weight to be accorded
the exhibits, not their admissibility. See Sellers, 102 N.C. App.
at 565, 402 S.E.2d at 873. Because it was demonstrated that the
photographs were true representations of plaintiff's automobile
following the accident, the trial court did not abuse itsdiscretion in admitting the photographs. We therefore overrule
this assignment of error.
By her second assignment of error, plaintiff argues that the
trial court erred in denying her motion for a new trial. Plaintiff
asserts that there was uncontroverted evidence that she sustained
permanent injury and incurred medical expenses in the amount of
$9,005.00 as a result of the collision caused by defendant.
Plaintiff contends that the jury manifestly disregarded the
evidence and the trial court's instructions such that the trial
court was required to grant plaintiff a new trial. We disagree.
Under Rule 59 of the North Carolina Rules of Civil Procedure,
a new trial may be granted where there is “[m]anifest disregard by
the jury of the instructions of the court” or where the jury awards
“[e]xcessive or inadequate damages . . . under the influence of
passion or prejudice.” N.C. Gen. Stat. § 1A-1, Rule 59(a) (2001).
Whether to grant or deny a motion to set aside a jury verdict is in
the sound discretion of the trial court. See Albrecht v. Dorsett,
131 N.C. App. 502, 505, 508 S.E.2d 319, 321 (1998). Thus, absent
a manifest abuse of discretion, the trial court's ruling in this
regard will not be disturbed. See id; Coletrane v. Lamb, 42 N.C.
App. 654, 656, 257 S.E.2d 445, 447 (1979).
There is no question that “[i]t is the province of the jury to
weigh the evidence and determine questions of fact.” Coletrane, 42
N.C. App. at 657, 257 S.E.2d at 447. Moreover, as the finder of
fact, the jury is “entitled to draw its own conclusions about the
credibility of the witnesses and the weight to accord theevidence.” Smith v. Price, 315 N.C. 523, 530-31, 340 S.E.2d 408,
413 (1986). The trial court must give the utmost consideration and
deference to the jury's function as trier of fact before setting
aside a decision of the jury. See Albrecht, 131 N.C. App. at 506,
508 S.E.2d at 322; Coletrane, 42 N.C. App. at 657, 257 S.E.2d at
447.
In the instant case, plaintiff introduced expert testimony by
Dr. Maier, who testified that plaintiff suffered a ten percent
permanent disability to her entire body as a result of the 13
January collision. Plaintiff contends that this evidence was
undisputed and that the jury's verdict was therefore inconsistent
with the evidence and contrary to North Carolina law. In support
of her argument, plaintiff cites the case of Daum v. Lorick
Enterprises, 105 N.C. App. 428, 413 S.E.2d 559, disc. review
denied, 331 N.C. 383, 417 S.E.2d 789 (1992). In Daum, the
plaintiff-employee prevailed against the defendant-employer and
supervisor in an action alleging intentional infliction of
emotional distress and negligence, but the jury awarded the
plaintiff damages in an amount far below the uncontroverted
evidence submitted by the plaintiff. Id. at 431-32, 413 S.E.2d at
561. On appeal, this Court held that the plaintiff was entitled to
a new trial on the issue of damages, because the jury arbitrarily
ignored evidence of the employee's pain and suffering and her need
for future medical expenses. See id.
Unlike Daum, the evidence in the present case regarding
plaintiff's injuries was not unequivocal, plaintiff's assertions tothe contrary. Although defendant presented no expert testimony to
contradict the testimony of Dr. Maier, cross-examination revealed
that Dr. Maier relied entirely upon plaintiff's statements to him
concerning her medical history and her description of the collision
in forming his medical opinion of the source and extent of
plaintiff's injuries. Dr. Maier also testified that “it would be
very hard to sustain a significant injury” in an accident where the
rate of speed at impact was five miles per hour or less. Defendant
testified that she was traveling at a rate no greater than one or
two miles per hour when she “rolled into” plaintiff's automobile.
Further cross-examination revealed that plaintiff suffered from a
multitude of pre-existing medical problems, and that two physicians
who examined plaintiff's neck following the accident found it to be
supple and with a full range of motion. As credibility of the
evidence is exclusively for the jury, “it was well within the
jury's power to minimize or wholly disregard the testimony” given
by Dr. Maier. Albrecht, 131 N.C. App. at 506, 508 S.E.2d at 322.
We therefore hold that the trial court did not abuse its discretion
in denying plaintiff's motion for a new trial, and we overrule this
assignment of error.
In the judgment of the trial court, we find
No error.
Judges BRYANT and GEER concur.
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