Walker v Myers, (03-523) 06/01/2004

Appeal by plaintiff from judgment entered 29 October 2002 by Judge Ernest B. Fullwood in Sampson County Superior Court. Heard in the Court of Appeals 3 May 2004.

Brenton D. Adams and Shirl J. Rice for plaintiff-appellant.

Wallace, Morris & Barwick, P.A., by Edwin M. Braswell, Jr., for Crystal Lynne Curl, defendant-appellee.

ELMORE, Judge.

    Plaintiff appeals from a judgment dismissing his action seeking damages arising out of defendants' alleged negligence. Plaintiff took a voluntary dismissal with prejudice of his claim against defendants Myers and proceeded to trial on his claim against defendant Curl. Plaintiff's sole assignment of error is that the trial court erred in granting defendant Curl's motion for a directed verdict.
    Plaintiff's evidence tends to show that, on the evening of 2 June 1998, plaintiff was a passenger in a van being operated bydefendant Richard Myers (defendant Myers). Plaintiff and defendant Myers were traveling on U.S. Highway 421 in Sampson County from their workplace in Dunn. As defendant Myers prepared to make a right turn off of Highway 421 and on to Greenpath Road, he steered the vehicle slightly to the left toward the center of Highway 421, a two lane undivided highway marked by a yellow line separating the two lanes of traffic. When defendant Myers began making the right turn toward Greenpath Road, the rear of the van was hit by defendant Curl's automobile. The initial impact caused the van to rotate a little. Defendant Curl's car then struck the van two additional times, in the right sliding door and above the right front wheel. The van's front tire blew out and the van came to a rest at the side of Greenpath Road, with defendant Curl's car behind it.
    Plaintiff testified that he had been defendant Myers' passenger on about three occasions prior to 2 June 1998. Based upon these experiences, plaintiff considered defendant Myers to be a “pretty good driver.” Plaintiff also testified that the accident was “all of a sudden.” Prior to the accident, he did not hear a horn nor did he hear brakes screech. Defendant Myers' van did not cross over the center line before making the turn. On cross- examination, plaintiff was asked if he knew how the accident happened and responded, “I really don't, 'cause I didn't see her coming.”
    Plaintiff's only other witness at trial was a chiropractor, Dr. Timothy Holcomb, who testified that in his opinion,degeneration of plaintiff's back was accelerated by the accident.     At the close of the evidence for the plaintiff, the court denied the motion of defendant Curl for a directed verdict. After choosing not to offer any evidence, defendant Curl renewed her motion for a directed verdict. The court granted the motion.     Plaintiff contends that, when viewed in the light most favorable to the plaintiff, the evidence was sufficient to submit the case to the jury. Specifically, plaintiff argues that, based upon plaintiff's testimony, “the jury could have made reasonable inference that the defendant was not keeping proper lookout so as to avoid a collision, or that the defendant was following too closely.” Defendant Curl counters that the “plaintiff . . . is required to offer evidence sufficient to establish, beyond mere speculation or conjecture, every essential element of negligence.” Oliver v. Royall, 36 N.C. App. 239, 242, 243 S.E.2d 436, 439 (1978). Defendant argues that, in this case, plaintiff failed to do this, rather, plaintiff's testimony only “points to the negligence of the defendant Myers.”
    In ruling on a motion for a directed verdict, “all evidence supporting the plaintiff's claim must be taken as true and considered in the light most favorable to the plaintiff, giving him the benefit of every reasonable inference which may be legitimately drawn therefrom, with contrasts, contradictions, conflicts and inconsistencies resolved in the plaintiff's favor.” Oliver v. Royall, 36 N.C. App. 239, 240, 243 S.E.2d 436, 438 (1978) (citations omitted). To survive a defendant's motion for adirected verdict in a negligence case, a plaintiff must show some evidence that the defendant “failed to exercise proper care in the performance of some legal duty owed him and that the breach of this duty was the proximate cause of his injury.” Goodman v. Wenco Foods, Inc., 333 N.C. 1, 18, 423 S.E.2d 444, 452 (1992). Furthermore, a plaintiff must make some showing that, under the same circumstances, a person of ordinary prudence would have foreseen the likelihood of the injury. Id.    The burden on the movant is “particularly significant” in negligence cases:
Only in exceptional cases is it proper to enter a directed verdict against a plaintiff in a negligence case. Issues arising in negligence cases are ordinarily not susceptible to summary adjudication because application of the prudent person test, or any other applicable standard of care, is generally for the jury.

Cook v. Wake County Hospital System, 125 N.C. App. 618, 621, 482 S.E.2d 546, 549 (1997) (citations omitted).
    We conclude that when the evidence is viewed in the light most favorable to plaintiff, a jury could reasonably find that defendant Curl was negligent in failing to exercise proper care to avoid the accident. Plaintiff testified that he did not hear a horn or brakes screech. Plaintiff further testified that defendant Curl's car hit the van from behind and that, ultimately, defendant Curl's car came to a rest on the side of the road behind the van. Additionally, plaintiff testified that he knew defendant Myers to be a reasonably good driver. From this evidence, the jury could reasonably infer that defendant Curl failed to blow her horn in an effort to warn the occupants of the van that her car wasapproaching, failed to attempt to stop her car in sufficient time to avoid the accident, failed to exercise due care in keeping a proper lookout for vehicles ahead, and failed to keep adequate distance between her vehicle and the vehicle ahead of hers.
    We hold the court erred by allowing the motion for a directed verdict. We reverse the judgment and remand the matter for a new trial.
    Reversed and remanded.
    Judges TIMMONS-GOODSON and CALABRIA concur.
    Report per Rule 30(e).

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