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.
I.
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.
II.
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).
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