Nie-Hmok v Ayers, 163 NC App 610 (03-604) 04/06/2004

Appeal by plaintiffs from judgment entered 11 December 2002 by Judge Nate P. Proctor in Mecklenburg County District Court. Heard in the Court of Appeals 26 February 2004.

RICHARD A. PENISTON & ASSOCIATES, PA by Justice H. Campbell for plaintiffs.

MORRIS YORK WILLIAMS SURLES & BARRINGER, L.L.P. by Christa C. Pratt and Roberta S. Sperry for defendant.

    TIMMONS-GOODSON, Judge.

    Hayo Nie-Hmok (“Hayo”) and H Yuen Nie-Hmok (“H Yuen”) (collectively as “plaintiffs”) appeal the trial court's judgment of a directed verdict in favor of William Eugene Ayers (“defendant”). For the reasons stated herein, we affirm the trial court's judgment.
    The evidence presented at trial tends to show the following: Defendant was driving his automobile on Central Avenue in Charlotte, North Carolina at approximately 6:30 p.m. on 19 February 2000 with his son John Edward Ayers (“John”) in the front passenger's seat. Defendant was driving in a curve in the road,and passing a car that was making a right turn from the right lane. At that time, plaintiffs were pedestrians crossing Central Avenue. Plaintiffs looked to their right and their left before crossing the street and observed defendant's vehicle from a distance. Plaintiffs then proceeded to cross the street whereupon they were struck by defendant's vehicle. Each of the plaintiffs sustained injuries from the collision.
    In February 2002, plaintiffs filed a negligence action to recover money damages incurred as a result of their injuries. At trial, defendant moved for a directed verdict pursuant to N.C. R. Civ. P. 50(a) at the close of plaintiffs' evidence, which the trial court granted and dismissed the case with prejudice. It is from this judgment that plaintiffs appeal.

    The dispositive issue on appeal is whether the trial court erred by granting a directed verdict in favor of defendant. We hold that directed verdict was properly granted.
    “A motion for directed verdict is appropriately granted only when by looking at the evidence in the light most favorable to the nonmovant, and giving the nonmovant the benefit of every reasonable inference arising from the evidence, the evidence is insufficient for submission to the jury.” Crist v. Crist, 145 N.C. App. 418, 422, 550 S.E.2d 260, 264 (2001), citing Streeter v. Cotton, 133 N.C. App. 80, 514 S.E.2d 539 (1999). The trial court may properly direct a verdict against the plaintiff “[i]n the absence of the prima facie inference of negligence arising upon plaintiff'sevidence.” Miller v. Motors, Inc., 40 N.C. App. 48, 50, 251 S.E.2d 925, 927 (1979). “A trial court's decision to grant or deny a motion for directed verdict . . . will not be disturbed on appeal absent an abuse of discretion.” Crist, citing G.P. Publications, Inc. v. Quebecor Printing-St. Paul, Inc., 125 N.C. App. 424, 481 S.E.2d 674 (1997).
    In the case sub judice, we conclude that plaintiffs have not established a prima facie case of negligence, although we note that defendant owed a statutory duty of care toward plaintiffs. N.C. Gen. Stat. § 20-173(a) (2003) mandates as follows:
        Where traffic-control signals are not in place or in operation the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at or near an intersection, except as otherwise provided in Part 11 of this Article.

From the evidence presented at trial it is clear that a duty of care existed under this statute. First, we consider defendant's role as a driver, which makes him a member of the class of persons targeted by the statute. Second, we consider plaintiffs' role as pedestrians, which makes them members of the class protected by the statute. Third, we consider plaintiffs' evidence that they were crossing the roadway within a marked crosswalk. This evidence implicates exactly the type of activity that the statute is designed to regulate. Thus, we hold that defendant had a statutory duty of care to plaintiffs and that the first element of plaintiffs' prima facie case of negligence is satisfied.    We next consider whether defendant's conduct constitutes a breach of his statutory duty. We hold that it does not.
    The evidence presented at trial tends to show that at the instant defendant saw plaintiffs crossing the street, defendant attempted to yield the right-of-way. In deposition testimony admitted at trial, John testified that
        . . . I noticed two girls, one older and one younger, starting to run across the road. They never looked towards the vehicle. They were always looking toward downtown Charlotte. And at that time, my dad _ I was getting ready to say something to my dad when he noticed them. At that time he slammed on the brakes, tried to avoid missing them, and that was about it after that.

Later in the deposition John provided the following testimony in response to questioning by defense counsel:
        Q:    How far away were you all from that group of people when you first saw them?

        A:    About 50 feet.

        Q:     Then I believe you said that two of those people began to run across the roadway?

        A:    That's correct.

        Q:    How far were you all when you saw those people first start to run?

        A:    About 40 feet away from them.

        Q:    And you said about that same time your father recognized it as well, right?

        A:    Yes.

        Q:    How do you know that?

        A:    Because when he saw them, when I saw them, he said, [“]Oh, gosh.” That's when he slammed on the brakes.
        Q:    And he tried to avoid striking them, is that right?

        A:    Yes, he did.

        . . . .

        Q:    Do you have an opinion of how fast you all were traveling before this incident occurred?

        A:    Between 30 and 35.

        Q:    Do you have an opinion as to how fast your father's vehicle was traveling at the time of the impact?

        A:    At the time of the impact he was almost at a complete stop.

Thus, the evidence tends to show that defendant was driving at 30 to 35 miles per hour when he saw plaintiffs begin to cross the street approximately 40 feet ahead of his car. He slammed on his brakes, and managed to almost come to a complete stop by the time he reached the crosswalk.
    H Yuen's testimony tends to show that plaintiffs misjudged the rate of speed at which defendant was traveling. On direct examination, H Yuen testified that her family had frequented the area, and that they had crossed Central Avenue at the crosswalk in question on other occasions. During cross-examination, H Yuen gave the following testimony about the incident:
        Q:    When you looked left, you actually saw Mr. Ayers's vehicle, is that what you testified to?

        A:    It was _ yes; it was far.

        Q:    And you saw a car in front of his vehicle or with _ beside his vehicle?
        A:    Yeah, it was a small car.

        Q:    And you chose to step out in the roadway anyway?

        A:    We thought we had enough time because it was that far.

However, plaintiffs presented no evidence of the rate of speed with which defendant's vehicle traveled, nor of the speed limit at that location on Central Avenue. Thus, there is no basis to establish defendant's negligence on the premise that he was speeding. The evidence presented during plaintiffs' case-in-chief does not establish a prima facie case of negligence where it does not demonstrate that defendant breached his duty of care. Thus, there was insufficient evidence of negligence for the trial judge to submit the case to the jury. We conclude that the trial judge did not abuse his discretion in directing a verdict for defendant.
    Because we hold that plaintiffs did not establish a prima facie case of negligence, it is unnecessary for this Court to address plaintiffs' remaining assignments of error. We affirm the ruling of the trial court.
    Affirmed.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

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