Appeal by defendant from judgment entered 9 December 2005 and
order entered 5 June 2006 by Judge Gary L. Locklear in Superior
Court, Brunswick County. Heard in the Court of Appeals 24 May
2007.
David and Associates, P.L.L.C. by David F. Turlington and G.
Phillip David for plaintiff-appellee.
Ellen J. Persechini for defendant-appellant.
STROUD, Judge.
This is a negligence action arising from an automobile
accident in which plaintiff Patricia Morton was injured. Defendant
Katherine Latta Lee appeals (1) the trial court's grant of a
directed verdict to plaintiff at the close of all evidence on the
question of negligence
(See footnote 1)
and (2) the trial court order grantingplaintiff a new trial on the question of damages following the
return of a jury verdict in the amount of $6,000.00. We reverse
and remand.
I. Background
At approximately 9:30 a.m. on 17 June 2001, defendant was the
driver of an automobile which collided with the Ford Crown Victoria
in which plaintiff was a passenger. The collision occurred at the
intersection of Old Ferry Road and Stanbury Road near Holden Beach
in Brunswick County, North Carolina. Plaintiff's husband, Roger
Morton, was the driver of plaintiff's vehicle.
On 10 March 2004, plaintiff filed suit in Superior Court,
Brunswick County alleging, in part, that defendant acted
negligently by failing to stop at the stop sign and that her
negligence was the proximate cause of the collision. Plaintiff
alleged damages including lost wages, pain and suffering, and
medical expenses, arising from permanent injury to her back and
right knee. In her answer, defendant denied plaintiff's
allegations of negligence and alternatively pled the “intervening
and supervening” negligence of Roger Morton as an affirmative
defense. Thereafter, defendant made an offer of judgment in the
amount of $22,000.00, which plaintiff rejected. Plaintiff's claimwas tried before a jury at the 18 April 2005 Civil Session of
Superior Court, Brunswick County.
Evidence presented at trial showed that both Old Ferry Road
and Stanbury Road are two-lane roads. Old Ferry Road curves to the
east as it approaches the intersection with Stanbury from the north
and curves to the east again just beyond the intersection. Traffic
at the intersection is controlled by stop signs facing east and
west on Stanbury Road. The posted speed limit on Old Ferry Road
through the curve is forty-five miles per hour.
Mr. Morton drove through the intersection in the southbound
lane of Old Ferry Road. Defendant drove through the intersection
in the westbound lane of Stanbury Road. Defendant and Mr. Morton
were the sole testifying eye-witnesses at trial because plaintiff
was turned around, looking in the backseat, when the collision
occurred. Plaintiff was wearing only the lap belt portion of her
seat belt at that time.
Plaintiff called Mr. Morton as a witness at trial, who
testified that the accident occurred as follows:
Q. Tell the jury in your own words how the
accident happened.
A. Well, as I approached the_-the
intersection and started around the curve, I
saw a car entering the intersection from the
east, or on my left. The car_-and at the time
I saw it, I thought well, that car's not going
to stop. And you're pretty close to that
intersection once you get it in view from the
woods. In other words, if you come around the
curve, by the time you can see that
intersection, you're fairly close to it. I
don't know the exact distance, but I_-but when
I saw the car I_-I immediately put on brakes
and slowed down. At that_-just about thatpoint I saw the brake lights come on, on the
car. So, I again accelerated and started on
through the intersection.
As I got right to the intersection, the
car pulled right on out, just directly in
front of me, just as I got into the
intersection. So I pulled over. There was
three cars stopped at the stop sign on the
west side of the road, and I pulled just as
far out of the road as I could, to keep from
hitting those cars. And then that's about
where the collision happened, was exactly in
front of those cars stopped over there.
. . . .
Q. Explain to us, if you would whereabouts
you were when you say you saw [defendant's]
brake lights.
A. When I came around the curve, I saw
[defendant]_-. . . but she hadn't_-she hadn't
gotten to the stop sign at the time I saw her
car. I always look when I come around that
curve, because it's so dangerous. There's
been a lot of wrecks there, and I tell my
family all the time to be careful on Stone
Chimney Road. And,_but I_I saw her before she
got to the stop sign. And I_-it appeared to
me that she might not be going to stop, the
car might not be going to stop. So I started
braking_-braking down. And at the time that
the brake lights came on, I was already on_-
close to the intersection, probably halfway.
So then when I saw the brake lights, I just
immediately gave my car some gas and proceeded
on through the intersection. And as I
approached the intersection, she kept pulling
out. So there was actually no_-you know_no
where to go, at that point.
Mr. Morton described the curve on Old Ferry Road as a “long,
sweeping curve” to the east. He further testified that he was
driving approximately forty to forty-five miles per hour around the
curve on Old Ferry Road. Following the collision, Mr. Morton's
vehicle crossed a ditch and traveled approximately 130 feet into
the woods, coming to rest in “head high” bay bushes. Finally, Mr.Morton testified that tree growth shown in photographs of the
intersection used to illustrate his testimony “may not be the same”
as on the day of the accident because power lines have since been
installed on both sides of the intersection.
Defendant testified that the accident occurred as follows:
A. I stopped at the intersection. I looked
to my right, because that's the direction
there and there's a curve, a sharp curve. And
I looked that way first. Back to my left,
there is a clear view for a good distance. I
looked to my left, and then I looked straight
ahead. I saw nothing in either of the_-either
of the three directions, and I proceeded. And
when I started to cross the intersection, I
was looking straight ahead of me, and that's
when the accident happened.
. . . .
A. I was driving in the right-hand lane,
towards Varnumtown, this way. Here is the
stop sign [indicating on a photograph]. I
stopped here. This is the road that goes on
toward Holden Beach. I was about right here.
I looked this way, and then this way, and then
straight ahead. No, I looked to my left
first, and then to my right. I've always made
a practice of doing that. And then straight
ahead.
Q. And can you show the jury again where you
believe you stopped on Stanbury Road?
A. It was some ways from this dotted line
that separates the two roads.
Q. And it was between the dotted lines at
the stop sign, or was it back here behind the
stop sign?
A. I stopped back by the stop sign.
Later, defendant testified that there were “trees and growth
there at the time of the accident” that were not in the picture.
Defendant further testified that there were no other cars stopped at the intersection on Stanbury Road. Finally, defendant testified
that she could not have been traveling more than five miles per
hour at the time of the collision.
On cross-examination, defendant testified as follows:
Q. Are you sure as we talk today,
[defendant], whether you looked left, then
right, or right, then left, at the
intersection?
A. I have made a habit of that, because I
can see a long way to my left there.
Q. Uh, huh.
A. I can't see but a short distance the
other way.
Q. Uh, huh.
A. So, I look to the long way; then I look
to my right. And then I go.
Q. And when you go, which direction do you
look?
A. I didn't look far enough that day, to my
right. But basically, straight ahead, but I
try to keep one eye in that direction now,
because I know how quick somebody can come
around that curve.
North Carolina State Highway Patrol Officer Bryan Capps, who
responded to the accident, testified that plaintiff's vehicle left
thirty-nine foot long skid marks before the point of impact at the
accident scene. Officer Capps read the accident narrative recorded
in his police report into evidence as follows:
“Vehicle 1,” which was [defendant],
“traveling_-was traveling west on RP 1124
[Stanbury Road]. Vehicle 2 was traveling
south on RP 1115 [Old Ferry Road]. As Vehicle
1 attempted to cross 1115, it was struck by
Vehicle 2. After impact, Vehicle 1 came to
rest in the intersection facing southeast. Vehicle 2 ran off the road on the right,
struck a ditch. Vehicle 2 then continued to
travel into a wooded area, striking several
small trees, where it came to rest facing
southwest.”
Officer Capps further testified that there were no independent
witnesses to the accident.
Plaintiff moved for a directed verdict on the question of
negligence at the close of all evidence, which the trial court
granted on 22 April 2005. The trial court instructed jurors on
damages only and the jury returned a verdict in the amount of
$6,000.00 on that same day. The trial court entered judgment on
the jury's verdict on 9 December 2005. Also on 9 December 2005,
plaintiff filed a motion for additur, which the trial court denied,
and a motion for a new trial, which the trial court allowed on 5
June 2006. Defendant appeals both the trial court's award of
directed verdict and the trial court's grant of a new trial.
II. Directed Verdict
To rule on a motion for directed verdict at the close of
evidence, the trial court must view “the evidence in the light most
favorable to the nonmovant, and giv[e] the nonmovant the benefit of
every reasonable inference arising from the evidence.”
Crist v.
Crist, 145 N.C. App. 418, 422, 550 S.E.2d 260, 264 (2001)
. On
appeal, this Court must determine whether the evidence “is
sufficient as a matter of law to be submitted to the jury.”
Farndale Co., LLC v. Gibellini, 176 N.C. App. 60, 66-67, 628 S.E.2d
15, 19 (2006). In so doing, this Court reviews the trial court
record and transcript
de novo.
Castle McCulloch v. Freedman, 169N.C. App. 497, 500, 610 S.E.2d 416, 419,
aff'd, 360 N.C. 57, 620
S.E.2d (2005) (per curiam).
Directed verdicts are usually inappropriate in negligence
cases because “the issue of whether a defendant breached the
applicable standard of care is normally a factual question which
the jury must answer.”
Leatherwood v. Ehlinger, 151 N.C. App. 15,
19, 564 S.E.2d 883, 886 (2002),
disc. review denied, 357 N.C. 164,
580 S.E.2d 368 (2003). Also, “[w]here the question of granting a
directed verdict is a close one, the better practice is for the
trial judge to reserve his decision on the motion and allow the
case to be submitted to the jury.”
Barber v. Presbyterian Hosp.,
147 N.C. App. 86, 88, 555 S.E.2d 303, 305 (2001). “[A] motion for
directed verdict should not be granted when there is a conflict in
the evidence, because it is the job of the jury to resolve such
conflicts.”
Williams v. Davis, 157 N.C. App. 696, 702, 580 S.E.2d
85, 89 (2003).
N.C. Gen. Stat. § 20-158(b)(1) (2005) provides that:
When a stop sign has been erected or installed
at an intersection, it shall be unlawful for
the driver of any vehicle to fail to stop in
obedience thereto and yield the right-of-way
to vehicles operating on the designated
main-traveled or through highway.
N.C. Gen. Stat. § 20-158(d) provides that:
No failure to stop as required by the
provisions of this section shall be considered
negligence . . . per se in any action at law
for injury to person or property, but the
facts relating to such failure to stop may be
considered with the other facts in the case in
determining whether a party was guilty of
negligence.
“The motorist who is required to stop and ascertain whether he
can proceed safely is deemed to have seen what he would have been
able to see had he looked.”
Williams, 157 N.C. App. at 701, 580
S.E.2d at 89. “'His liability to one injured in a collision with
his vehicle is determined as it would have been had he looked,
observed the prevailing conditions and continued to drive as he
did.'”
U.S. Industries, Inc. v. Tharpe, 47 N.C. App. 754, 761, 268
S.E.2d 824, 829,
cert. denied, 301 N.C. 90, 273 S.E.2d 311 (1980)
(quoting
Raper v. Byrum, 265 N.C. 269, 274, 144 S.E.2d 38, 41
(1965)).
Based on the evidence stated above and our review of the
record and transcript as a whole, we conclude that the issue of
defendant's negligence was a close question, which arose from
conflicting evidence and which the jury should have been allowed to
resolve. In particular, the evidence supports inferences in
defendant's favor concerning plaintiff's speed, visibility at the
intersection, and the care with which defendant proceeded into the
intersection.
III. Conclusion
For the reasons stated above, the trial court erred by
granting a directed verdict to plaintiff on the issue of
negligence. The judgment entered 9 December 2005 by Judge Gary L.
Locklear in Superior Court, Brunswick County is reversed and this
matter is remanded to that court for a new trial on all issues.
The order entered on 5 June 2005 by Judge Locklear in Superior
Court, Brunswick County awarding plaintiff a new trial on thequestion of damages only is vacated. We do not reach defendant's
second assignment of error to the trial court's award of a new
trial on the issue of damages.
REVERSED AND REMANDED IN PART; VACATED IN PART.
Judges McCULLOUGH and BRYANT concur.
Report per Rule 30(e).
Footnote: 1