Appeal by plaintiff from judgment entered 30 April 2003 and
order entered 24 June 2003 by Judge John R. Mull in Catawba County
District Court. Heard in the Court of Appeals 14 September 2004.
CAMPBELL & TAYLOR, P.C., by Robyn M. Lacy, for plaintiff-
appellant.
MORRIS, YORK, WILLIAMS, SURLES & BARRINGER, L.L.P., by John P.
Barringer and Heather G. Connor, for defendant-appellee.
TIMMONS-GOODSON, Judge.
Jerry Wayne Whisnant, Jr. (“plaintiff”) appeals the trial
court judgment denying plaintiff any recovery from Roberto Carlos
Herrera (“defendant”) and the trial court order denying plaintiff's
motion for judgment notwithstanding the verdict and motion for a
new trial. For the reasons discussed herein, we affirm the trial
court's judgment.
The facts and procedural history pertinent to the instantappeal are as follows: On 31 October 2000, plaintiff was traveling
in his vehicle in the northbound lane of North Main Street Parallel
(“Main Street”) in Granite Falls. As plaintiff proceeded along
Main Street, defendant was stopped in his vehicle behind a third
vehicle parked in the southbound lane of Main Street. As
plaintiff's vehicle approached, defendant drove his vehicle from
the southbound lane of Main Street into the northbound lane of Main
Street, in an attempt to maneuver his vehicle around the vehicle
blocking the southbound lane. When plaintiff saw defendant's
vehicle enter plaintiff's lane of travel, plaintiff applied his
vehicle's brakes. The two vehicles nevertheless collided “head-on”
in the northbound lane of Main Street.
Granite Falls Police Department Officer Chris Robinson
(“Officer Robinson”) investigated the accident. After examining
the scene of the accident, Officer Robinson determined that
defendant's vehicle had not left any skid marks and that
plaintiff's vehicle had left skid marks measuring thirty-two feet
in length. Officer Robinson then estimated that plaintiff's
vehicle was traveling forty miles per hour at the moment plaintiff
first applied the brakes, and thirty miles per hour at the moment
the two vehicles collided. Following his investigation, Officer
Robinson cited defendant for driving left of center.
As a result of the accident, plaintiff received injuries to
his neck and lower back. On 31 August 2001, plaintiff filed a
complaint against defendant, alleging that defendant's negligent
operation of his vehicle was the proximate cause of the accident.
On 2 January 2002, defendant filed an answer denying plaintiff'sallegations and asserting the affirmative defense of contributory
negligence.
The case proceeded to trial the week of 15 January 2003. At
trial, plaintiff testified that, as his vehicle approached the
vehicle parked in the southbound lane, plaintiff maneuvered his
vehicle toward the shoulder of the northbound lane. Plaintiff
further testified that he was unsure of his exact speed prior to
applying his vehicle's brakes, but he did not believe that he was
speeding. Plaintiff also testified that, because it was Halloween
and he was aware there were children in the area, he was paying
careful attention prior to the accident.
Defendant testified that Main Street was narrow and barely
wide enough for two cars to pass. He further testified that as he
maneuvered his vehicle around the vehicle parked in the southbound
lane of travel, he did not see plaintiff's vehicle approaching.
Defendant testified that there were children entering and exiting
the parked vehicle at the time of the accident, and he admitted
that in order to maneuver his vehicle around the parked vehicle, he
was forced to enter the northbound lane of Main Street.
At the close of all the evidence, both parties moved for a
directed verdict on the issues of negligence and contributory
negligence. The trial court denied both motions and subsequently
submitted both issues to the jury. On 16 January 2003, the jury
found defendant negligent and plaintiff contributorily negligent,
thereby denying plaintiff any recovery for damages. On 30 April
2003, the trial court entered judgment in the case and ordered that
plaintiff have and recover nothing from defendant. On 9 May 2003,plaintiff moved the trial court for judgment notwithstanding the
verdict, or, in the alternative, a new trial. On 24 June 2003, the
trial court denied plaintiff's motion. Plaintiff appeals.
_____________________________
The issues on appeal are whether the trial court erred by:
(I) denying plaintiff's motion for directed verdict; and (II)
denying plaintiff's motion for judgment notwithstanding the
verdict, or, in the alternative, new trial.
[1] Plaintiff first argues that the trial court erred in
denying his motion for directed verdict. Plaintiff asserts that
there was insufficient evidence to submit the issue of contributory
negligence to the jury. We disagree.
The purpose of a motion for directed verdict is “to test the
legal sufficiency of the evidence to take the case to the jury and
to support a verdict for plaintiffs[.]”
Wallace v. Evans, 60 N.C.
App. 145, 146, 298 S.E.2d 193, 194 (1982). The evidence should be
considered in the light most favorable to the nonmovant, and the
nonmovant is to be given the benefit of all reasonable inferences
from the evidence.
Id. “If there is more than a scintilla of
evidence supporting each element of the nonmovant's case, the
motion for directed verdict should be denied.”
Snead v. Holloman,
101 N.C. App. 462, 464, 400 S.E.2d 91, 92 (1991). Thus, where a
defendant pleads an affirmative defense such as contributory
negligence, “a motion for directed verdict is properly granted
against the defendant where the defendant fails to present more
than a scintilla of evidence in support of each element of his
defense.”
Id. Contributory negligence is “negligence on the part of the
plaintiff which joins, simultaneously or successively, with the
negligence of the defendant . . . to produce the injury of which
the plaintiff complains.”
Jackson v. McBride, 270 N.C. 367, 372,
154 S.E.2d 468, 471 (1967). Our Supreme Court has previously
stated that “two elements, at least, are necessary to constitute
contributory negligence[.]”
Construction Co. v. R.R., 184 N.C.
179, 180, 113 S.E. 672, 673 (1922). The defendant must
demonstrate: (1) a want of due care on the part of the plaintiff;
and (2) a proximate connection between the plaintiff's negligence
and the injury.
Id. “There must be not only negligence on the
part of the plaintiff, but
contributory negligence, a real causal
connection between the plaintiff's negligent act and the injury, or
it is no defense to the action.”
Id. (emphasis in original).
“If the evidence raises only a 'mere conjecture' of
contributory negligence, the issue should not be submitted to the
jury.”
Brown v. Wilkins, 102 N.C. App. 555, 557, 402 S.E.2d 883,
884 (1991) (citing
Radford v. Norris, 74 N.C. App. 87, 88, 327
S.E.2d 620, 621,
disc. review denied, 314 N.C. 117, 332 S.E.2d 483
(1985)). “However, since negligence usually involves issues of due
care and reasonableness of actions under the circumstances, it is
especially appropriate for determination by the jury.”
Radford, 74
N.C. App. at 88-89, 327 S.E.2d at 621-22. “In 'borderline cases,'
fairness and judicial economy suggest that courts should decide in
favor of submitting issues to the jury.”
Id. at 89, 327 S.E.2d at
622 (citation omitted).
When considered in the light most favorable to defendant, theevidence in the instant case tends to show the following: (1) Main
Street is a narrow road that is barely wide enough for two cars to
pass; (2) as plaintiff was traveling northbound on Main Street,
defendant maneuvered his vehicle around a vehicle parked in the
southbound lane of Main Street; (3) there were children entering
and exiting the parked vehicle at the time of the accident; (4)
although plaintiff applied his brakes, plaintiff's vehicle and
defendant's vehicle nevertheless collided in the northbound lane of
Main Street; (5) prior to the accident, plaintiff's vehicle was
traveling at approximately forty miles per hour. We conclude that
this evidence does more than raise “mere conjecture” on the issue
of contributory negligence.
We recognize that our Supreme Court has previously stated that
“[o]rdinarily a person has no duty to anticipate negligence on the
part of others. . . . [H]e has the right to assume and to act on
the assumption that others will observe the rules of the road and
obey the law.”
Penland v. Green, 289 N.C. 281, 283, 221 S.E.2d
365, 368 (1976). However, in
Penland, the Court further stated
that “the right to rely on this assumption is not absolute.”
Id.
Thus, where “circumstances existing at the time are such as
reasonably to put a person on notice that he cannot rely on the
assumption, he is under a duty to exercise that care which a
reasonably careful and prudent person would exercise under all the
circumstances then existing.”
Id.
In the instant case, the evidence presented at trial tends to
show that as plaintiff approached the scene of the accident,
plaintiff was aware it was Halloween and that children might be inthe area. Nevertheless, plaintiff continued to exceed the speed
limit of Main Street, even though, according to defendant, children
were exiting the vehicle parked in the southbound lane. We
conclude that this evidence was sufficient to extinguish the
presumption in plaintiff's favor and is sufficient to support the
trial court's decision to submit the issue of contributory
negligence to the jury.
Plaintiff maintains that defendant's evidence failed to
establish a proximate causal connection between plaintiff's
allegedly negligent actions and the accident. In support of this
assertion, plaintiff cites
Ellis v. Whitaker, 156 N.C. App. 192,
576 S.E.2d 138 (2003). The plaintiff in
Ellis appealed the trial
court's judgment finding her contributorily negligent for an
accident involving defendant and denying her motions for judgment
notwithstanding the verdict. This Court reversed, concluding that
because “the evidence failed to establish a proximate connection
between plaintiff's speed and the accident[,]” the trial court
erred in submitting the issue of contributory negligence to the
jury. 156 N.C. App. at 196, 576 S.E.2d at 141. We conclude that
the instant case is distinguishable from
Ellis.
In
Ellis, the defendant-driver admitted that he did not see
plaintiff's vehicle prior to impact, but nevertheless testified
that he thought that the plaintiff was speeding. According to the
defendant-driver, the plaintiff was traveling “approximately
forty-five to fifty-five miles per hour” prior to impact, an
estimate that the defendant-driver “'arrived at . . . based upon
the severity of the impact of [plaintiff's] car into [defendants']car and what [plaintiff's] car did to [defendants'] car as a result
of the impact.'”
Id. at 194, 576 S.E.2d at 140. On appeal, this
Court recognized that “[d]efendants' evidence regarding plaintiff's
speed suggested negligence on her part[.]”
Id. at 196, 576 S.E.2d
at 141. However, we concluded that
“whether or not she was
speeding, 'plaintiff was not required to anticipate that the
defendant would be negligent.'”
Id. (quoting
Cicogna v. Holder,
345 N.C. 488, 489, 480 S.E.2d 636, 637 (1997)). Thus, we held that
“[w]ithout more, defendants failed to establish the 'real causal
connection' between plaintiff's negligence and the accident
necessary to prove plaintiff was contributorily negligent.”
Ellis,
156 N.C. App. at 196, 576 S.E.2d at 141.
In the instant case, the evidence presented at trial is not so
speculative as to warrant a similar disposition. Officer Robinson
investigated the scene and measured the visible skid marks
immediately after the accident. Officer Robinson testified that
although he “didn't result [it] as being a contributing factor,” he
estimated plaintiff's speed prior to the accident to be
“approximately forty” miles per hour, or five miles over the speed
limit. Officer Robinson also testified that he measured the skid
marks of plaintiff's vehicle and found them to be thirty-two feet
long. Defendant testified that the roadway upon which the accident
occurred was “very narrow” and “barely wide enough for two cars to
pass.” Although plaintiff testified that at the time of the
accident he was “unsure” of his speed, he further testified that he
did not believe he was speeding because “I kind of have a feel for
how I'm traveling as to what the vehicle is going to do.” Plaintiff also testified that he saw the van parked in front of
defendant's vehicle, but “[f]rom the time I seen the defendant, I
was right there. There was nothing else I could do.”
We conclude the evidence presented at trial is sufficient to
support the causal element of a contributory negligence defense.
“Proximate cause is an inference of fact to be drawn from other
facts and circumstances. Only when the facts are all admitted and
only one inference may be drawn from them will the court declare
whether an act was the proximate cause of an injury or not.”
Adams
v. Mills, 312 N.C. 181, 193, 322 S.E.2d 164, 172 (1984). Unlike
the facts of
Ellis, the facts and circumstances of the instant case
suggest a “real causal connection” exists between plaintiff's
actions and the accident. Viewed in the light most favorable to
defendant, the evidence produced at trial tends to show that
plaintiff was exceeding the speed limit on a narrow road while
approaching a vehicle stopped in the opposite lane of travel.
Plaintiff was driving on Halloween night, and in an area where
children were exiting and entering vehicles on the roadway.
“[W]hen the principles of proximate causation are applied to
the instant case, the issue becomes whether a person of ordinary
prudence in the plaintiff's position would have foreseen that an
accident, or some generally injurious consequence would occur under
the facts as they existed.”
Adams, 312 N.C. at 194, 322 S.E.2d at
172. In light of the evidence produced at trial, the jury could
have found that, in the exercise of reasonable and ordinary
prudence, plaintiff could have foreseen that some generally
injurious consequence might occur were he to continue speeding ona narrow road toward a vehicle stopped in the opposing lane and
from which children were exiting. Therefore, we conclude that the
trial court did not err in denying plaintiff's motion for directed
verdict on the issue of contributory negligence.
[2] Plaintiff next argues that the trial court erred in
denying his post-trial motion for judgment notwithstanding the
verdict, or, in the alternative, new trial. We note initially that
a motion for judgment notwithstanding the verdict “is simply a
renewal of a party's earlier motion for directed verdict[.]”
Kearns v. Horsley, 144 N.C. App. 200, 207, 552 S.E.2d 1, 6,
disc.
review denied, 354 N.C. 573, 559 S.E.2d 179 (2001). Thus, “'on
appeal the standard of review for a [judgment notwithstanding the
verdict] is the same as that for a directed verdict, that is
whether the evidence was sufficient to go to the jury.'”
Id. at
207, 552 S.E.2d at 6 (citation omitted). Therefore, because we
conclude
supra that the trial court did not err in denying
plaintiff's motion for directed verdict, we also conclude that the
trial court did not err in denying plaintiff's post-trial motion
for judgment notwithstanding the verdict.
Furthermore, after reviewing the record in the instant case,
we have determined that none of the causes or grounds listed under
N.C. Gen. Stat. § 1A-1, Rule 59 (2003) exist in the instant case,
and thus a new trial was not required. Therefore, we hold that the
trial court did not err in denying defendant's post-trial motion,
and accordingly, we affirm the trial court's judgment.
Affirmed.
Judges HUNTER and McCULLOUGH concur.
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