JAMES T. FRANKLIN,
Plaintiff-Appellant,
v
.
Mecklenburg County
No. 01-CVS-4420
JOHN OUTEN,
Defendant-Appellee.
McGEE, Judge.
James T. Franklin (plaintiff) filed a complaint against John
Outen (defendant) dated 5 March 2001 seeking damages for personal
injuries allegedly sustained in an automobile collision that
occurred on 24 March 1998. Defendant filed an answer on 14 August
2001. Cincinnati Insurance Company, as underinsurance carrier,
filed a notice of appearance as an unnamed party on 24 June 2002.
A jury trial was held on 18 November 2002. The jury returned a
verdict concluding that plaintiff's claimed injuries were notproximately caused by the negligence of defendant. Plaintiff filed
a motion for a new trial on 21 November 2002 and, in an order
entered 26 November 2002, the trial court denied plaintiff's
motion. The trial court entered judgment for defendant on 27
November 2002. Plaintiff appeals.
The evidence presented at trial tended to show that plaintiff
was operating a vehicle in Mecklenburg County on 24 March 1998 when
his vehicle was struck from behind by a vehicle owned and operated
by defendant. The collision pushed plaintiff's vehicle into the
vehicle in front of him, resulting in damage to all three vehicles.
Plaintiff testified that he immediately felt soreness in his neck.
Defendant also stated in his deposition that he saw plaintiff throw
his hands up "like he was going to hold his neck" upon the impact
caused by the collision.
Plaintiff further testified that a police officer immediately
arrived at the scene of the accident and asked plaintiff if he
needed an ambulance. Plaintiff replied that "[he didn't] know.
Let me sit here for a while." The police officer conducted a
factual investigation of the accident and completed a vehicle
accident report. Plaintiff and defendant conferred with each other
and with the police officer, and both signed an insurance exchange
form. Plaintiff and defendant left the accident scene in their
respective vehicles.
Plaintiff testified that he first went home and then went to
the emergency room of a local hospital. Plaintiff testified that
he did not receive any diagnostic treatment at the hospital andthat he was told he would probably miss a couple of days of work.
However, plaintiff returned to work the following morning. Within
a few days, plaintiff sought medical treatment through his workers'
compensation provider, Doctor's Care Medical Center. Plaintiff
began physical therapy for pain in his neck and back on 22 April
1998. He continued his medical treatment for the next few months
and received an MRI on 30 September 1998. After the MRI, plaintiff
discontinued medical treatment for his neck and back pain.
Plaintiff testified, however, that he still had soreness in his
neck and back. Plaintiff's workers' compensation carrier provided
plaintiff with "a lump sum disability payment in addition to the
medical bills."
In his deposition, Dr. Eugene Neal Powell, Jr. (Dr. Powell),
testified regarding plaintiff's thumb injuries that plaintiff
alleged were caused by the collision. Plaintiff testified that he
did not seek any medical treatment for his thumb injuries until he
saw Dr. Powell approximately twenty-one months after the collision.
Dr. Powell did not testify regarding plaintiff's neck or back pain.
Dr. Powell was plaintiff's only medical expert.
Defendant testified that he came to a complete stop
immediately before the collision occurred and then accelerated
following the stop. He testified he was going less than five miles
per hour when his vehicle bumped into plaintiff's vehicle. He
further testified that the damage to their respective vehicles was
minor, stating that his bumper had a half-inch dent while
plaintiff's bumper was "bent down slightly." Police Officer Darryl Sturdivant (Officer Sturdivant)
testified that he wrote in his vehicle accident report exactly what
plaintiff, defendant and the third-party driver told him had
happened. Relying on his report, Officer Sturdivant noted that
plaintiff's vehicle was not stationary when it was struck from
behind. Officer Sturdivant rated the damage to plaintiff's vehicle
and the other two vehicles as minimal, specifically assigning the
damage at the lowest level of "1" on a scale of one to seven.
Plaintiff contends the trial court abused its discretion in
denying a motion for a new trial "despite uncontroverted evidence
that the plaintiff suffered immediate neck pain at impact." As
plaintiff observes, Rule 59(a) of the North Carolina Rules of Civil
Procedure provides that a new trial may be granted on the following
grounds: "(6) [e]xcessive or inadequate damages appearing to have
been given under the influence of passion or prejudice; (7)
[i]nsufficiency of the evidence to justify the verdict or that the
verdict is contrary to law[.]" N.C. Gen. Stat. § 1A-1, Rule 59(a)
(2003). It is within the discretion of the trial court to grant or
deny a motion to set aside a jury verdict and order a new trial.
Horne v. Vassey, 157 N.C. App. 681, 687, 579 S.E.2d 924, 928
(2003). Absent an abuse of discretion, the trial court's ruling on
the matter will not be disturbed. Id. "There is no question that
'[i]t is the province of the jury to weigh the evidence and
determine questions of fact.'" Id. (quoting Coletrane v. Lamb, 42
N.C. App. 654, 657, 257 S.E.2d 445, 447 (1979)). Moreover, as the
fact-finder, the jury is "entitled to draw its own conclusionsabout the credibility of the witnesses and the weight to accord the
evidence." 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." Horne, 157 N.C. App. at
687, 579 S.E.2d at 928 (citations omitted).
In the case before us, plaintiff states that testimony
introduced at trial regarding the vehicle collision was
"uncontroverted evidence" that he suffered a neck injury in the
collision. Plaintiff directs this Court to his testimony
concerning the secondary collision caused by the initial collision
and to his testimony that the initial collision rendered him
temporarily incoherent. Plaintiff also argues defendant himself
testified that plaintiff appeared to reach for his neck upon the
impact of the initial collision. In support of plaintiff's
argument that a new trial was warranted in light of this allegedly
uncontroverted evidence, plaintiff cites 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, this Court
held that the plaintiff was entitled to a new trial on the issue of
damages because the jury arbitrarily ignored "uncontroverted
evidence" of the plaintiff's pain and suffering. Id. at 431-32,
413 S.E.2d at 561.
Unlike Daum, the evidence in the present case regarding the
cause of plaintiff's neck injury was not uncontroverted. Defendant
testified, among other things, that he came to a complete stopbefore the collision and that his vehicle was moving less than five
miles per hour at the time of impact. Both defendant and Officer
Sturdivant described the damage to the vehicles as minor. It was
the province of the jury to draw its own conclusions about the
credibility of the witnesses who testified at trial and the weight
to afford the conflicting evidence regarding the impact and effect
of the collision. In light of defendant's evidence that the
accident was very minor, the jury was justified in concluding that
plaintiff's alleged injuries were not the proximate result of
defendant's negligence.
The jury's verdict in this case is further bolstered by
plaintiff's failure to present any medical expert testimony to the
jury regarding the cause of plaintiff's neck injury. Plaintiff's
only medical expert witness, Dr. Powell, stated in his deposition
that he did not treat plaintiff for any condition relating to
plaintiff's back or neck. Dr. Powell did, however, discuss his
treatment of plaintiff's thumb injuries. Plaintiff has abandoned
the issue of his alleged thumb injuries in his brief on appeal and
we do not address the jury's finding of no causation on this issue.
We note, however, that evidence at trial regarding the cause of
plaintiff's thumb injuries was also controverted. Even plaintiff
testified that he did not notice any pain in his thumbs until a
year after the collision. Moreover, Dr. Powell stated in his
deposition that it was likely that plaintiff had degenerative joint
disease prior to the collision. During cross-examination, Dr.
Powell stated that he relied entirely upon plaintiff's statementsto him concerning plaintiff's medical history and plaintiff's
description of the accident in forming his opinion. Such
testimony, like the testimony of defendant and Officer Sturdivant
regarding the impact and effect of the collision, controverted
plaintiff's evidence.
The case before us is similar to Horne, where the defendant
testified that she rear-ended the plaintiff's vehicle while moving
at approximately one or two miles per hour, and that the bumper of
the plaintiff's automobile "was pushed out of place by a few
inches." Horne, 157 N.C. App. at 683, 579 S.E.2d at 926. At the
scene, the plaintiff indicated that "she thought she was okay" but
later claimed that she suffered head and neck injuries due to the
collision. Id. at 682-83, 579 S.E.2d at 925-26. The plaintiff's
physician stated in his deposition that the plaintiff suffered a
ten percent disability to her body as a result of the collision.
Id. at 683, 579 S.E.2d at 925. The jury found that the plaintiff
was entitled to no recovery, and judgment was entered accordingly.
As in the case before us, the trial court denied the plaintiff's
motion for a new trial. Id. at 683, 579 S.E.2d at 926. On appeal,
the plaintiff in Horne argued that there was uncontroverted
evidence that she sustained permanent injury as a result of the
collision and that the jury manifestly disregarded the evidence in
rendering its verdict. Horne, 157 N.C. App. at 687, 579 S.E.2d at
928. Observing that the evidence in Horne was "not unequivocal,"
this Court held that the trial court did not abuse its discretion
in denying the plaintiff's motion for a new trial. Id. at 688, 579S.E.2d at 928-29.
As discussed herein, the evidence in the present case is
similarly not unequivocal. Plaintiff attempts to distinguish Horne
from the present case by asserting that the plaintiff's testimony
in Horne was not credible. However, it is the exclusive province
of the jury to determine the credibility of the evidence. Horne,
157 N.C. App. at 688, 579 S.E.2d at 929. As plaintiff and
defendant in the present case presented conflicting evidence, it
was for the jury to determine the credibility of that evidence.
Plaintiff also attempts to distinguish Horne from the present
case by pointing out that plaintiff received workers' compensation
benefits after his workers' compensation carrier determined that
his injuries were related to the accident. Plaintiff asserts that
the jury misunderstood the law by finding for defendant in spite of
this evidence. The worker's compensation determination, however,
was merely evidence for the jury to consider. N.C. Gen. Stat. §
97-10.2(e) (2003) (provides that "[t]he amount of compensation and
other benefits paid [under the North Carolina Workers' Compensation
Act] . . . shall be admissible in evidence in any proceeding
against the third party") (emphasis added). Clearly, such evidence
did not convince the jury that plaintiff's alleged injuries were
caused by the collision in light of defendant's evidence to the
contrary. With conflicting evidence in this case, it was the
province of the jury to weigh the evidence and draw its conclusions
accordingly. We therefore hold that the trial court did not abuse
its discretion in denying plaintiff's motion for a new trial. Affirmed.
Judges WYNN and TYSON concur.
Report per Rule 30(e).
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