An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-627


Filed: 6 April 2004

Guardian Ad Litem for MAYA
    Plaintiffs                        Durham County
                                    No. 00-CVS-02413


    Appeal by plaintiff from judgment entered 14 October 2002 by Judge A. Leon Stanback in Durham County Superior Court. Heard in the Court of Appeals 25 February 2004.

    Willie R. Perry, Jr. for plaintiff-appellant.

    Haywood, Denny & Miller, L.L.P., by George W. Miller, III, for defendant-appellee.

    HUNTER, Judge.

    Pamela Humphrey Stokes (“plaintiff”) appeals a judgment finding her contributorily negligent with respect to a motor vehicle accident between her and Sara Gray Wiley (“defendant”). For the reasons stated herein, we conclude the trial court did not err.
    The accident at issue occurred at approximately 6:40 p.m. on 8 July 1998 at the intersection of Hope Valley Road and Garrett Road in Durham, North Carolina (“the intersection”). Plaintiff was traveling with her children, Maya and John, in the left northboundlane on Hope Valley Road when she stopped at a red light at the intersection. Defendant, traveling on Garrett Road in the right westbound lane, also came to a stop at a red light at the intersection. Traffic traveling southbound on Hope Valley Road had a green left turn directional arrow and was turning off Hope Valley Road onto Garrett Road traveling east. Defendant, believing it was safe to make a right turn while her light was red, turned off Garrett Road into the far right northbound lane of Hope Valley Road. After traveling for “more than a few seconds” and checking for oncoming traffic, defendant began to merge into the left northbound lane of Hope Valley Road. Defendant had traveled approximately fifty feet and had almost completely merged into the left northbound lane when her vehicle collided with plaintiff's vehicle. As a result of the accident, plaintiff sought medical treatment.
    Plaintiff filed a complaint on 14 June 2000 alleging the accident was caused due to defendant's negligence. In her answer, defendant denied liability. However, defendant alleged plaintiff's contributory negligence as a bar to any recovery if defendant was found to be negligent.
    A trial by jury was held on 7 October 2002. Plaintiff moved for directed verdict at the close of her evidence, which was denied. Plaintiff renewed her motion after the presentation of all the evidence, and it was again denied. Following its deliberation, the jury returned a verdict finding plaintiff contributorily negligent. A judgment was entered reflecting the jury verdict on15 October 2002. Plaintiff subsequently filed a “Plaintiff's Motion to Set Aside Verdict and Judgment, have Judgment Entered in Accordance with her Motion for Directed Verdict, for Judgment Notwithstanding the Verdict and for New Trial.” The motions were denied, and plaintiff appeals.
    On appeal, plaintiff brings forth five assignments of error, which essentially present this Court with the following two issues: whether the trial court committed reversible error when it denied (1) plaintiff's motion for directed verdict/motion for judgment notwithstanding the verdict (“JNOV”); or, in the alternative, (2) plaintiff's motion for a new trial.


    The first issue is whether the trial court erred in denying plaintiff's motion for directed verdict and later, her motion for JNOV. We conclude the trial court properly denied both motions.
    A motion for JNOV “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 (2001). When ruling on either motion, the trial court must consider the evidence in the light most favorable to the non-movant, taking the evidence supporting the non-movant's claims as true with all contradictions, conflicts, and inconsistencies resolved in the non-movant's favor so as to give the non-movant the benefit of every reasonable inference. Newton v. New Hanover County Bd. of Education, 342 N.C. 554, 563, 467 S.E.2d 58, 65 (1996). “'On appeal the standard of review for a JNOV . . . is the same as that for a directed verdict, that iswhether the evidence was sufficient to go to the jury.'” Kearns, 144 N.C. App. at 207, 552 S.E.2d at 6 (citation omitted). This is a high standard for the moving party, requiring a denial of the motion if there is more than a scintilla of evidence to support the non-movant's prima facie case. Id. Moreover, “[t]he heavy burden carried by the movant is particularly significant in cases . . . [where] the principal issues are negligence and contributory negligence[]” because “application of the prudent man test, or any other applicable standard of care, is generally for the jury.” Taylor v. Walker, 320 N.C. 729, 734, 360 S.E.2d 796, 799 (1987). Therefore, motions for directed verdict and JNOV are rarely appropriate for these issues. Smith v. Wal-Mart Stores, 128 N.C. App. 282, 286, 495 S.E.2d 149, 151 (1998).
    When considered in the light most favorable to defendant, the evidence in the case sub judice established that plaintiff failed to keep a proper lookout prior to the accident: (1) plaintiff traveled a distance of approximately 150 feet before colliding with defendant; (2) plaintiff's view of the intersection was unobstructed; and (3) plaintiff's vehicle did not leave any skid marks prior to the impact. Additional evidence tended to show that plaintiff also hit defendant from the rear: (1) the impact occurred between plaintiff's right front bumper and defendant's left rear; (2) defendant had to look behind her to see plaintiff's vehicle after the accident; and (3) the collided vehicles came to a stop mostly in the left northbound lane of Hope Valley Roadindicating that defendant had essentially completed her merge into that lane in front of plaintiff.
    “While not conclusive, the mere fact of a collision with a vehicle ahead furnishes some evidence that the following motorist was negligent as to speed or in following too closely, or in failing to keep a proper lookout.” Champion v. Waller, 268 N.C. 426, 429, 150 S.E.2d 783, 786 (1966). When all the evidence is considered in the light most favorable to the non-movant, it provides more than a scintilla of evidence to support defendant's contributory negligence defense. Accordingly, the trial court did not err in denying plaintiff's motions for directed verdict or JNOV.

    The second issue is whether the trial court erred in denying plaintiff's motion for a new trial.
        The trial court's decision to exercise its discretion to grant or deny a Rule 59(a)(7) motion for a new trial for insufficiency of the evidence must be based on the greater weight of the evidence as observed firsthand only by the trial court. The test for appellate review of a trial court's granting of a motion for a new trial due to insufficiency of the evidence continues to be simply whether the record affirmatively demonstrates an abuse of discretion by the trial court in doing so.
In re Buck
, 350 N.C. 621, 629, 516 S.E.2d 858, 863 (1999). As addressed previously, the evidence was sufficient to warrant submission of defendant's contributory negligence defense to the jury and support its verdict. Therefore, the trial court did not abuse its discretion in denying plaintiff's motion for a new trial.    No error.
    Judges McCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***