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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1509


Filed: 4 September 2007


    v.                        Brunswick County                                     No. 04 CVS 451


    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.
    Judges McCULLOUGH and BRYANT concur.
    Report per Rule 30(e).

Footnote: 1
     Defendant noticed appeal “from the Order granting [p]laintiff's motion for directed verdict, which was made during the trial of this matter on April 21, 2005 by the Honorable Gary L. Locklear .” The trial court entered a final judgment on the jury's verdict in this matter on 9 December 2005. Although the parties did not include this judgment in the record on appeal, this Court exercised its powers pursuant to North Carolina Rule of Appellate Procedure 9(b)(5) to order the judgment and add it to the record onappeal. N.C. R. App. P. 9(b)(5) (2005). Defendant's appeal from the trial court's award of directed verdict is before this court pursuant to N.C. Gen. Stat. § 1-278 (2005), which provides that “[u]pon an appeal from a judgment, the court may review any intermediate order involving the merits and necessarily affecting the judgment.”

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