Hodge v Procter, (04-364) 03/15/2005

Appeal by plaintiff from judgment entered 22 October 2002 by Judge Ronald E. Spivey in Guilford County Superior Court. Heard in the Court of Appeals 16 November 2004.

Bob Davidson, Jr., for plaintiff-appellant.

Burton & Sue, L.L.P., by Walter K. Burton and Stephanie W. Anderson, for defendant-appellee.

    ELMORE, Judge.

    Ashley Hodge (plaintiff) was driving a car struck from behind by Nathan Proctor (defendant). Plaintiff was in a line of cars which stopped suddenly to avoid hitting a vehicle at the front of the line which had unexpectedly slowed to turn right into a shopping center. Defendant, who was traveling behind plaintiff, attempted to stop his car but was unable and skidded for a distance of twenty-two feet prior to rear-ending plaintiff. The jury found that plaintiff was not injured by defendant's negligence. Plaintiff argues that liability was established as a matter of law, and therefore the trial court erred in denying her motions fordirected verdict, judgment notwithstanding the verdict, and new trial. We do not agree.
    The standard of review regarding motions of this kind has been well established.
        The test for determining whether a motion for directed verdict is supported by the evidence is identical to that applied when ruling on a motion for judgment notwithstanding the verdict. . . . In ruling on the motion, the trial court must consider the evidence in the light most favorable to the nonmoving party, giving him the benefit of all reasonable inferences to be drawn therefrom and resolving all conflicts in the evidence in his favor. . . . The party moving for judgment notwithstanding the verdict, like the party seeking a directed verdict, bears a heavy burden under North Carolina law. . . . Furthermore, generally, a motion for new trial is addressed to the sound discretion of the trial court, and its ruling will not be disturbed absent a manifest abuse of that discretion. . . .

Garrett v. Smith, 163 N.C. App. 760, 764, 594 S.E.2d 232, 234-35 (2004) (internal quotations and citations omitted).
    In the light most favorable to defendant, the non-moving party, the evidence shows that a sudden stop of a preceding car in a line of cars caused all the following cars to quickly brake. Defendant rear-ended plaintiff after trying to bring his car to a stop. Plaintiff argues that under these circumstances, defendant's resulting rear-end collision amounts to negligence as a matter of law.
    Yet generally, issues of negligence are rarely appropriate for summary judgment or directed verdict. Nicholson v. American Safety Utility Corp., 346 N.C. 767, 774, 488 S.E.2d 240, 244 (1997). And,just offering that a rear-end collision occurred is not conclusive of defendant's liability; rather, this type of collision creates a possible inference of liability on defendant's behalf, one that must be resolved by the jury. Garrett, 163 N.C. App. at 765, 594 S.E.2d at 235; Scher v. Antonucci, 77 N.C. App. 810, 812, 336 S.E.2d 434, 435 (1985). The jury here resolved the issue of liability in defendant's favor. There is nothing in the record to suggest that liability was conclusive as a matter of law, and accordingly, the trial court did not err in denying the motions.
    Plaintiff next argues that the trial court erred in denying her request to instruct the jury on the law of following too closely, N.C. Gen. Stat. § 20-152 (2004). This argument has some persuasion, but also fails. This Court in Bass v. Johnson, 149 N.C. App. 152, 160, 560 S.E.2d 841, 847 (2002), held that after reviewing the jury charge in its entirety, an appellate court must be convinced “that the jury was misled or that the verdict was affected by an omitted instruction” to find a jury charge insufficient. Id. (citing Robinson v. Seaboard System Railroad, 87 N.C. App. 512, 524, 361 S.E.2d 909, 917 (1987)).
    Here, the trial court instructed the jury on two theories of liability: failure to maintain control of the vehicle and failure to reduce speed to avoid an accident. The jury rejected both of these theories. Other than asserting that she was prejudiced by the trial court's refusal to instruct on following too closely, plaintiff offers no evidence that the jury was misled or that the verdict was affected. We are not convinced that adding aninstruction on failing to maintain a proper distance would have changed the jury's verdict.
    We are cognizant of our opinion in Scher v. Antonucci, which determined that since an instruction on following too closely bore directly on the issue of defendant's negligence it was error not to instruct upon it, “irrespective of plaintiff's request for special instructions.” Scher, 77 N.C. App. at 813, 336 S.E.2d at 435. Yet, in Scher, the trial court presented the jury with only the instruction of failure to keep a proper look out, ignoring an instruction that was directly implicated by the evidence.
    Here, the jury rejected two fairly particular instructions, both of which were borne out by the evidence at trial. It is highly unlikely that this jury would have found defendant liable for following too closely when they found him not liable for failing to slow his vehicle according to the stopping traffic, an instruction that under the circumstances of the case is remarkably similar. It is evident that in Scher the jury was denied a directly applicable instruction whereas here, the jury was offered an instruction directly implicated by the evidence, and declined to find that defendant violated the law.
    Even though another reasonable jury might have found liability on the evidence presented, this reasonable jury did not. We find no error in the denial of plaintiff's motions for a directed verdict, judgment notwithstanding the verdict, new trial, and special instructions.
    Affirmed.
    Judge HUDSON concurs.
    Judge WYNN concurs in result only.
    Report per Rule 30(e).

*** Converted from WordPerfect ***