An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-546


Filed: 4 May 2004


v .                         Mecklenburg County
                            No. 01-CVS-4420

    Appeal by plaintiff from order entered 26 November 2002 and from judgment entered 27 November 2002 by Judge W. Robert Bell in Superior Court, Mecklenburg County. Heard in the Court of Appeals 3 February 2004.

    Devore, Acton & Stafford, P.A., by Fred W. Devore, III, for plaintiff-appellant.

    Morris, York, et al., by R. Gregory Lewis and Heather G. Conner, for defendant-appellee.

    Stiles Byrum & Horne, by Ned A. Stiles, for unnamed defendant- appellee Cincinnati Insurance Company.

    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).

*** Converted from WordPerfect ***