Appeal by plaintiff from judgment entered 29 October 2003 and
order entered 12 March 2004 by Judge Abraham Penn Jones in Wake
County Superior Court. Heard in the Court of Appeals 14 April
2005.
E. Gregory Stott and John A. Obiol for plaintiff-appellant.
LARCADE & HEISKELL, P.L.L.C., by Chistopher N. Heiskell, for
defendant-appellees Veronica Van Harreveld and Philip Van
Harreveld.
TEAGUE, CAMPBELL, DENNIS & GORHAM, by Jennifer B. Milak and
Melissa R. Garrell, for unnamed defendant-appellee Continental
Casualty Company.
TIMMONS-GOODSON, Judge.
Henry Lonzia Woodard, Jr., (“plaintiff”) appeals the trial
court judgment in favor of defendants in a negligence action
arising out of an automobile collision, and the trial court order
denying plaintiff's motion for judgment notwithstanding the verdict
and new trial. Because we conclude that the issues were properly
presented to the jury for determination and the trial court did not
abuse its discretion in deciding the post-trial motions, we affirmthe trial court's judgment and order.
The facts and procedural history pertinent to the instant
appeal are as follows: On 16 March 1999, plaintiff was driving his
vehicle on N.C. 98 in Wake County. As plaintiff was attempting to
enter a driveway located off N.C. 98, his vehicle collided with a
vehicle driven by Veronica Van Harreveld (“Veronica”) and owned by
Philip Van Harreveld (“Philip”) (collectively, “defendants”). As
a result of the accident, plaintiff suffered injuries to his neck,
head, back, and legs. On 27 September 2000, plaintiff filed a
complaint against Veronica and Philip, alleging that Veronica and
Philip's negligence was a proximate cause of plaintiff's injuries.
The case proceeded to trial the week of 29 September 2003. At
trial, plaintiff testified that prior to the accident, he was
searching for a residence located on N.C. 98. Plaintiff testified
that because he initially passed the residence, he “went down for
about a half a mile or two and made a U-turn.” Plaintiff testified
that as he approached the residence the second time, he “put [his]
left turn signal on” and started to make a left turn into the
residence's driveway. Plaintiff further testified that as he began
the turn, Veronica's vehicle struck his vehicle near its driver's
side door. Plaintiff asserted that he did not see Veronica's
vehicle until the impact, and that the collision occurred in an
area of N.C. 98 marked with “[d]ouble-yellow lines.”
North Carolina State Highway Patrol Trooper J.W. Bright
(“Trooper Bright”) testified that he interviewed the parties and
witnesses following the collision. Trooper Bright testified thatthe collision occurred in a “no-passing zone,” and that following
the collision, he observed “skid marks . . . coming from the
eastbound lane over into the westbound lane” of N.C. 98. Trooper
Bright asserted that the “point of impact” occurred in the
westbound lane of N.C. 98, and that the damage to Veronica's
vehicle was on the “front right quarter panel.” Although Trooper
Bright could not locate her statement from the incident, he
recalled Veronica informing him after the collision that “she was
not at fault; it was not her fault that this had happened.”
Trooper Bright also recalled “[s]omeone . . . mention something
about a turn signal.” Following cross-examination, the trial court
questioned Trooper Bright as follows:
THE COURT: Okay. Now, do you recall whether
either driver described to you how the
accident happened?
THE WITNESS: From what I recall, I believe
[plaintiff] may have been looking for a
particular place. He wasn't too sure where he
was going. So he was going to come in this
driveway to turn around, and when he was
coming to this driveway, [Veronica] here --
she evidently came upon his maneuver and saw
that he was going to go into this driveway
here, and that's where we have the tire
impression where she slammed on the brakes to
avoid hitting him in the rear or hitting him
at all, and that's where they came to a final
-- that's where they came to impact here in
this lane . . . .
THE COURT: Okay. Did [Veronica] tell you how
the accident happened, if you can recall?
THE WITNESS: I think there was something said
about -- from her that she may have thought he
was going to turn this way, or something, or
maybe use -- use the shoulder to -- to make a
U-turn or go around. She may have thought,
you know, he maybe was going to give up prettymuch ownership of this lane here, and when he
didn't turn she couldn't do anything but slam
on her brakes to avoid hitting him in this
lane.
Delilah Jackson Garrison (“Garrison”) testified that she
witnessed the collision as she was in her driveway. Garrison
stated that as she was walking to her mailbox, she saw plaintiff
“going down” N.C. 98 in “a big white Disabled American Veteran
truck.” Garrison stated that “a few minutes later” she “saw the
truck go back up the road, turn around . . . . and come back down
and put his signal on” in order to turn into her mother's driveway.
Garrison further stated that as the vehicle was turning into the
driveway, “a little red car” driven by Veronica approached the
vehicle and, “instead of going behind him trying to avoid him, she
went to her left and hit him right where you step up to get into
the -- the truck[.]” Garrison testified that as she approached
Veronica, Veronica told her that plaintiff “'didn't even put his
signal on to turn.'” In response, Garrison testified that she
informed Veronica that the “left turn signal was still blinking on
the truck.”
Veronica testified that prior to the collision, she “had a
clear view of the road in front” of her, and she noticed
plaintiff's vehicle “on the right side of the road on the right
shoulder.” Veronica stated that the vehicle was parked beyond a
mailbox, and that part of the vehicle was “on the gravel” of a
nearby driveway. Veronica also stated that as she was proceeding
down N.C. 98, plaintiff “suddenly and unexpectedly started his
turn, and by doing so . . . . [h]e blocked both lanes” of travel onN.C. 98. Veronica asserted that plaintiff's vehicle “was like a
wall in front” of her, and that in a “split second” she “had to
decide a head-on collision or go to the left or to the right.”
Veronica further asserted that she could not go to the right of
plaintiff's vehicle because “there was a mailbox” in that
direction, “and there was not enough space for [her] to go between
the mailbox and the truck.” Veronica testified that she thought
“the only thing I can do -- as I was driving alone; I had no
passenger -- is to brake and get along side; that the impact will
be on the side of my car.” Veronica further testified that “[a]t
the moment just before [she] was going to hit the truck,
[plaintiff] looked out the window with a surprised expression on
his face.” Veronica stated that she did not speak to Garrison
following the collision, but she remembered Garrison “going back
and forth talking to everybody, talking to the trooper, giving her
opinion, organizing.” Veronica also stated that she did not
observe plaintiff's vehicle's turn signal blinking at any point
during the incident.
Following the close of plaintiff's evidence as well as the
close of all the evidence, both parties made motions for directed
verdicts in their favor. The trial court denied each of the
motions and submitted the case to the jury. On 7 October 2003, the
jury returned a verdict determining that plaintiff was not injured
or damaged by the negligence of defendants. On 29 October 2003,
the trial court entered judgment in the case, concluding that
plaintiff should take nothing from defendants. On 30 October 2003,plaintiff filed a motion for judgment notwithstanding the verdict
and new trial. On 12 March 2004, the trial court entered an order
denying plaintiff's motion. Plaintiff appeals.
The issues on appeal are whether the trial court erred by:
(I) denying plaintiff's motion for directed verdict on the issue of
defendants' negligence; (II) denying plaintiff's motion for
directed verdict on the issue of plaintiff's contributory
negligence; (III) signing and entering the judgment in favor of
defendants; and (IV) denying plaintiff's motion for judgment
notwithstanding the verdict and new trial.
We note initially that defendants contend plaintiff has not
preserved issues I and II for appeal because plaintiff failed to
offer specific grounds for his motions to dismiss at trial. N.C.
Gen. Stat. § 1A-1, Rule 50(a) (2003) provides that a motion for
directed verdict “shall state the specific grounds therefor.” Our
courts have previously held that this requirement is mandatory, and
this Court has concluded that, in making a motion for directed
verdict, “[t]he better practice is to set forth the specific
grounds in a written motion. 'If the movant relies upon an oral
statement for such specific grounds, a transcript thereof must be
incorporated in the case on appeal.'”
Pallet Co. v. Truck Rental,
Inc.,
49 N.C. App. 286, 288, 271 S.E.2d 96, 97 (1980) (quoting
Hensley v. Ramsey, 283 N.C. 714, 726, 199 S.E.2d 1, 8 (1973)),
disc. review denied, 301 N.C. 722, 276 S.E.2d 282 (1981). In
Pallet Co., we “elect[ed] to waive the Rule 50(a) violation and toconsider the appeal on its merits” where the transcript of the
defendant's motion for directed verdict did not appear in the
record on appeal but the parties conceded that the defendant stated
only one ground for his motion for directed verdict. 49 N.C. App.
at 289, 271 S.E.2d at 97. In the instant case, the record on
appeal contains no transcript from those portions of the trial in
which plaintiff made his motions for directed verdict, and there is
no indication in the record that plaintiff filed written versions
of the motions. Although the parties do not concede that plaintiff
offered specific grounds for the motions, the record contains a
list of appellate stipulations of the parties, one such stipulation
providing that “at the end of the plaintiff's evidence and at the
end of all the evidence, both parties made Motions for Directed
Verdicts, which were denied by the trial court.” Furthermore,
while there is no indication in the record that plaintiff provided
specific grounds when making his motions, there is likewise no
indication that defendants objected at trial to the lack of
specificity of the motions.
See Byerly v. Byerly, 38 N.C. App.
551, 553, 248 S.E.2d 433, 435 (1978) (“[W]hen a motion for a
directed verdict is granted, the adverse party who did not make a
specific objection at trial to the movant's failure to state
specific grounds therefor is precluded from raising the objection
on appeal.”)
. In light of the circumstances of the instant case,
we elect to overlook the alleged Rule 50(a) violation and to
consider plaintiff's appeal on its merits.
Plaintiff first argues that the trial court erred by denyinghis motion for directed verdict on the issue of defendants'
negligence. Plaintiff asserts that there is insufficient evidence
in the record to support the trial court's decision to submit the
issue to the jury. We disagree.
The purpose of a motion for directed verdict is “to test the
legal sufficiency of the evidence to take the case to the jury and
to support a verdict for [the nonmoving party].”
Wallace v. Evans,
60 N.C. App. 145, 146, 298 S.E.2d 193, 194 (1982). “When
considering a motion for directed verdict, the trial court must
consider all the evidence in the light most favorable to the
nonmoving party and the nonmoving party is to receive the benefit
of every reasonable inference that can be drawn from the evidence.”
Bass v. Johnson, 149 N.C. App. 152, 155, 560 S.E.2d 841, 844
(2002). “The heavy burden carried by the movant is particularly
significant in cases . . . in which the principal issues are
negligence and contributory negligence.”
Taylor v. Walker, 320
N.C. 729, 734, 360 S.E.2d 796, 799 (1987).
In the instant case, plaintiff contends that the trial court
should have granted his motion for directed verdict on the issue of
defendants' negligence because “[i]t is physically impossible for
the accident to have occurred as [] defendant contends.” Plaintiff
asserts that the maneuver Veronica testified plaintiff was making
at the time of the collision could not have been executed in the
vehicle he was driving. However, after considering Veronica's
testimony in the light most favorable to defendants and resolving
all conflicts in testimony in their favor, we are unable toconclude that plaintiff is entitled to judgment as a matter of law.
Veronica testified that at the time of the collision, she was
traveling below the speed limit and keeping a clear lookout of the
road ahead. She further testified that although plaintiff's
vehicle was stopped on the right shoulder of the road in front of
her, as she approached his vehicle, plaintiff “suddenly and
unexpectedly” turned in front of her and left her no choice but to
maneuver her vehicle to the left or right to avoid a “head-on”
collision. Veronica also testified that she did not speak to
Garrison at the scene and did not observe plaintiff's turn signal
being on at any point during the incident. Although rejected by
plaintiff and Garrison, Veronica's version of the incident was
corroborated in part by Trooper Bright, who testified that Veronica
told him following the collision that “she . . . thought
[plaintiff] was going to . . . maybe use -- use the shoulder to --
to make a U-turn or go around. . . . [A]nd when he didn't turn she
couldn't do anything but slam on her brakes to avoid hitting him”
in the roadway. We note that in his brief, plaintiff makes several
arguments calling into question the veracity and plausibility of
Veronica's verison of the collision. However, the weight and
credibility of the evidence provided by the parties is a question
for the jury to consider rather than the trial court.
See Benfield
v. Costner, 67 N.C. App. 444, 449, 313 S.E.2d 203, 207 (1984)
(“[I]n considering [a] motion for a directed verdict, the trial
court does not pass upon the weight or credibility of the evidence,
the sole duty of the court being to determine whether there issufficient evidence upon which a jury could base a verdict.”). In
light of the foregoing, we conclude that the trial court did not
err by denying plaintiff's motion for directed verdict and
submitting the issue of defendants' negligence to the jury.
Accordingly, plaintiff's first argument is overruled.
Plaintiff next argues that the trial court erred by denying
his motion for directed verdict on the issue of contributory
negligence. Plaintiff asserts that defendants failed to satisfy
their burden in the affirmative defense, in that defendants failed
to demonstrate that plaintiff's negligence contributed to the
collision. However,
the record reflects that after finding that
plaintiff was not “injured or damaged by the negligence of []
defendants,” the jury concluded their deliberations and submitted
the verdict sheet to the trial court. Thus, the jury did not reach
the question of whether plaintiff was contributorily negligent in
the collision, and therefore plaintiff has failed to demonstrate
how he was prejudiced by the trial court's denial of his motion for
directed verdict and submission of the issue to the jury.
Accordingly, we overrule plaintiff's second argument.
Plaintiff's third argument is that the trial court erred by
signing and entering its judgment in favor of defendants. In
support of this argument, plaintiff reasserts his contentions
regarding the propriety of the denial of his motions for directed
verdict. However, we note that “[a]n assignment of error
concerning the signing and entry of a judgment 'presents only the
question of whether an error of law appears on the face of therecord, which includes whether the facts found or admitted support
the judgment and whether the judgment is regular in form.'”
Griffis v. Lazarovich, 161 N.C. App. 434, 442-43, 588 S.E.2d 918,
924 (2003) (quoting
Green v. Maness, 69 N.C. App. 403, 407, 316
S.E.2d 911, 913,
disc. review denied, 312 N.C. 622, 323 S.E.2d 922
(1984)),
disc. review denied, 358 N.C. 375, 598 S.E.2d 135 (2004).
After reviewing the record in the instant case, we conclude that
the trial court's judgment contains no such error. Accordingly,
plaintiff's third argument is overruled.
Plaintiff's final argument is that the trial court erred by
denying his motion for judgment notwithstanding the verdict and new
trial. Plaintiff asserts that the trial court should have granted
the motion because the jury's verdict was contrary to the evidence
and defied “the laws of mechanics, physics and reason.” We
disagree.
“The same standard is to be applied by the courts in ruling on
a motion for [judgment notwithstanding the verdict] as
is applied
in ruling on a motion for a directed verdict.”
Smith v. Price, 315
N.C. 523, 527, 340 S.E.2d 408, 411 (1986). “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.”
Taylor, 320 N.C. at
733-34, 360 S.E.2d at 799. “The party moving for judgment
notwithstanding the verdict, like the party seeking a directed
verdict, bears a heavy burden under North Carolina law.”
Id. at733, 360 S.E.2d at 799. “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.”
Kinsey v. Spann, 139 N.C. App. 370, 372, 533 S.E.2d
487, 490 (2000)).
In the instant case, plaintiff contends that the trial court
should have granted his motion for judgment notwithstanding the
verdict and new trial for the same reasons the trial court should
have granted his motions for directed verdict. However, plaintiff
had the burden of proving negligence on the part of defendants,
and, as discussed above, the evidence introduced at trial was
conflicting regarding the circumstances giving rise to the
collision. The parties had differing versions of the events
leading up to the collision, and the jury was entitled to weigh the
credibility of the evidence and parties at trial. Therefore, after
reviewing the record in the instant case, we are unable to conclude
that the trial court abused its discretion by denying plaintiff's
motion for judgment notwithstanding the verdict and new trial.
Accordingly, plaintiff's final argument is overruled.
In light of the foregoing, we affirm the trial court's entry
of judgment in favor of defendants and the trial court's denial of
plaintiff's motion for judgment notwithstanding the verdict and new
trial.
Affirmed.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
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