STEVEN L. SALKIN,
Plaintiff,
v
.
Mecklenburg County
No. 02 CVS 5118
LINDA FOSTER HORNE,
Defendant.
Wm. Benjamin Smith, for plaintiff-appellant.
Morris York Williams Surles & Barringer, L.L.P., by John P.
Barringer, for defendant-appellee.
JACKSON, Judge.
On 18 March 1999, plaintiff and defendant were involved in an
automobile accident on South Boulevard in Charlotte, North
Carolina. Plaintiff and defendant were driving two separate
vehicles in the southbound lane near the intersection of South
Boulevard and Wisteria Lane. Plaintiff observed a red car
traveling in the left hand turning lane. Plaintiff also observed
a white car in front of the red car stopped in the left hand
turning lane waiting to make a left hand turn onto Wisteria Lane.
The red car began to stop in the left hand turning lane.
Subsequently, plaintiff applied his brakes in the middle of the
road to allow the red car to move in front of plaintiff's car. Thered car then moved in front of plaintiff's car. Plaintiff pulled
his car slightly to the right and came to a complete stop. A small
period of time passed between the time plaintiff stopped in the
road and when defendant rear-ended plaintiff. Investigating
Officer, Jeffrey Ojaniit (“Officer Ojaniit”), stated there were
twenty-six-foot skid marks resulting from the accident. After
defendant saw plaintiff's brake lights, she pulled her car slightly
to the right.
At the close of evidence, the court denied plaintiff's motion
for a directed verdict on the issues of defendant's negligence and
plaintiff's contributory negligence. The court submitted two
issues to the jury: (1) was plaintiff injured by negligence of
defendant; and (2) did plaintiff, by his own negligence, contribute
to his injury. During its deliberations, the jury asked the trial
judge what compromise could be made if it was at a standoff. The
parties stipulated that they would accept a majority, rather than
a unanimous, verdict on the jury's deadlocked issue; however,
plaintiff reserved his objection to the court's submission of the
contributory negligence issue to the jury.
On 17 July 2003, the jury found both defendant negligent and
plaintiff contributorily negligent. On 18 July 2003, the court
denied plaintiff's motions for judgment notwithstanding the verdict
or, in the alternative, a new trial.
Rule 28(b)(6) of the North Carolina Rules of Appellate
Procedure states “assignments of error not set out in the
appellant's brief . . . will be taken as abandoned.” Althoughplaintiff has not assigned error to his argument as required by
Rule 28(b)(6), we choose to exercise our discretion in reviewing
the merits of plaintiff's appeal as it presents legal issues
clearly set out in plaintiff's brief that merit our attention.
Plaintiff first asserts that the trial court erred in denying
his motion for directed verdict. In determining whether a motion
for directed verdict is supported by the evidence, the court must
consider the evidence in the light most favorable to the
non-movant, and the non-movant is given the benefit of all
reasonable inferences from the evidence. Wallace v. Evans, 60 N.C.
App. 145, 146, 298 S.E.2d 193, 194 (1982). “If there is more than
a scintilla of evidence supporting each element of the nonmovant's
[sic] case, the motion for directed verdict should be denied.”
Snead v. Holloman, 101 N.C. App. 462, 464, 400 S.E.2d 91, 92
(1991)(citing Broyhill v. Coppage, 79 N.C. App. 221, 226, 339
S.E.2d 32, 36 (1986)). However, where a “defendant fails to
present more than a scintilla of evidence in support of each
element of his defense,” the motion for a directed verdict should
be granted in favor of the moving party. Id.
The defendant must demonstrate at least two necessary elements
when determining what constitutes contributory negligence: “(1) a
want of due care on the part of the plaintiff; and (2) a proximate
connection between plaintiff's negligence and the injury.”
Whisnant v. Herrera, __ N.C. App. __, 603 S.E.2d 847, 850
(2004)(citing Construction Co. v. R.R., 184 N.C. 179, 180, 113 S.E.
672, 633 (1922)). When more than one conclusion reasonably can bedrawn from the evidence, such a determination should be left for
the jury. Williams v. Davis, 157 N.C. App. 696, 700, 580 S.E.2d 85,
88 (2003)(citing Maness v. Construction Co., 10 N.C. App. 592,598,
179 S.E.2d 816, 819, cert. denied, 278 N.C. 522, 180 S.E.2d 610
(1971)). Because the issue of negligence most often involves due
care and reasonableness, it is rarely proper for a court to grant
a directed verdict in a negligence case. Stallings v. Food Lion,
Inc., 141 N.C. App. 135, 138, 539 S.E.2d 331, 333 (2000). See also
Radford v. Norris, 74 N.C. App. 87, 88-89, 327 S.E.2d 620, 621-22,
disc. rev. denied, 314 N.C. 117, 332 S.E.2d 484 (1985). In cases
where one pleads the affirmative defense of contributory
negligence, a directed verdict is only appropriate where “evidence
. . . establishes . . . negligence so clearly that no other
reasonable inference or conclusion may be drawn therefrom.”
Rappaport v. Days Inn, 296 N.C. 382, 384, 250 S.E.2d 245, 247
(1979), overruled on other grounds by Nelson v. Freeland, 349 N.C.
615, 507 S.E.2d 882 (1998); see also Snead v. Holloman, 101 N.C.
App. 462, 464, 400 S.E.2d 91, 92 (1991).
Here, when considered in the light most favorable to
defendant, the evidence tends to show the following: (1) plaintiff
observed a red car traveling in the left hand turning lane; (2) the
driver of the red car applied his brakes in the left hand turning
lane; (3) plaintiff applied his brakes to allow the red car to move
in front of plaintiff's car; (4) the red car subsequently pulled
into plaintiff's lane; (5) plaintiff then pulled the car slightly
to the right and suddenly made a complete stop in the road; (6)there were twenty-six-foot skid marks from the accident; and (7)
defendant saw plaintiff's brake lights immediately prior to
rear-ending plaintiff and subsequently pulled her car slightly to
the right. This evidence raises more than a “mere conjecture” on
the issue of contributory negligence.
Although there was conflicting testimony as to how the
accident occurred, it is the jury's obligation to resolve such
conflicts. Williams, 157 N.C. App. at 702, 580 S.E.2d at 89
(citing Maness, 10 N.C. App. at 598, 179 S.E.2d at 819). At
trial, Officer Ojaniit testified about the investigation report
made at the scene of the accident.
Counsel: What, if anything did you
observe?
Officer: [The] driver of Vehicle Number
2 [plaintiff] slowed in the
roadway to let a vehicle pull
into his lane of travel.
Vehicle Number 1 [defendant]
. . . struck Vehicle Number 2
(emphasis added) . . . .
Plaintiff contends that he involuntarily stopped in the
roadway to avoid an accident.
Counsel: And you became aware at some
point of a car coming up on
your left hand side, is that
right?
Plaintiff: That's correct. . . .
Counsel: He was kind of squeezing in,
wasn't he? . . .
Plaintiff: That's correct.
Counsel: And in fact he did cut
immediately in front of you?
Plaintiff: Correct.
At trial, defendant also explained that plaintiff applied his
brakes in the middle of the road to voluntarily allow the red car
to move in front of plaintiff's car. Based on the evidence
presented at trial, plaintiff failed to establish that no other
reasonable inference or conclusion may be drawn regarding the car
accident.
As to the issue of proximate causal connection between
plaintiff's allegedly negligent acts and the accident, we believe
that there was sufficient evidence presented at trial to support
the causal element of a contributory negligence defense. There is
a causal connection that exists between plaintiff suddenly stopping
in the road to allow another car to move in front of his vehicle
and defendant's inability to stop in time to prevent a rear-end
collision with plaintiff. When examining the evidence presented at
trial, the jury could have found that, in the exercise of
reasonable and ordinary prudence, plaintiff would have foreseen
some consequence were he to make a sudden stop in the middle of a
highway in the midst of traffic. Whisnant, __ N.C. App. at __, 603
S.E.2d at 852-53.
Plaintiff further asserts that the trial court erred in
denying his motion for judgment notwithstanding the verdict. A
motion for judgment notwithstanding the verdict 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, disc.
rev. denied, 354 N.C. 573, 559 S.E.2d 179 (2001)(citing TomikaInvs., Inc. v. Macedonia True Vine Pent. Holiness Ch. Of God, 136
N.C. App. 493, 498, 524 S.E.2d 591, 595 (2000). The standard of
review for a judgment notwithstanding the verdict is whether the
evidence was sufficient to go the jury - the same as it is for a
directed verdict. Whisnant, __ N.C. App __, 603 S.E.2d 847, 852
(2004)(citing Kearns, 144 N.C. App. 200, 207, 552 S.E.2d 1, 6).
Because we have stated that the trial court did not err in denying
plaintiff's motion for directed verdict, we also conclude for the
same reasons that the trial court did not err in denying
plaintiff's motion for judgment notwithstanding the verdict or
motion for a new trial.
Affirmed.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
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