Opinion
No. 8210SC855
Filed 19 July 1983
1. Rules of Civil Procedure 50 — directed verdict motion — made after charge to jury Where it seems clear from the record that as a matter of convenience the parties agreed to put all their formal motions and stipulations in the record after the jury retired, there was no merit to appellant's argument that two parties' motions for directed verdict were not timely because they were not made immediately after the close of defendant's evidence, but were made after the charge to the jury. Further, the fact that the trial judge withheld his ruling on the directed verdict motion until after the jury announced that it was unable to reach a verdict, was not grounds for reversal.
2. Automobiles and Other Vehicles 55; Rules of Civil Procedure 56.6 — summary judgment in negligence action proper — credibility manifest Where all the evidence at trial, viewed in the light most favorable to appellant, unequivocally showed that appellant's decedent either suddenly stopped or almost stopped on the highway, his car was hit from behind by Moss' truck, it crossed the center line, and then it collided with Conner Homes' truck, the evidence showed a violation of the standard of care required by G.S. 20-141 (h) which constituted negligence per se. Appellant's evidence neither contradicted any evidence of appellant's decedent's negligence nor materially impeached the appellees. The credibility of the movants' evidence was manifest, and directed verdict in their favor was proper.
3. Rules of Civil Procedure 50.2; Trial 6.1 — admission of party's complaint into evidence — judicial admission In a negligence action in which movants' motion for directed verdict was granted, appellant admitted the truth of movants' allegations by introducing the movants' complaint into evidence.
APPEAL by defendant from Preston, Judge. Judgments entered 3 September 1981 in Superior Court, WAKE County. Heard in the Court of Appeals 6 June 1983.
Patterson, Dilthey, Clay, Cranfill, Sumner and Hartzog, by Paul L. Cranfill, Young, Moore, Henderson and Alvis, by Edward B. Clark and Joseph C. Moore, III; Jones and Wooten, by Lamar Jones, for plaintiff appellees, Claude Tolson Murdock and Conner Homes Corporation.
Haywood, Denny and Miller, by James Aldean Webster III, and George W. Miller, Jr., for defendant appellees, Michael Lane Moss and Ernest Ray Cardwell.
Smith, Anderson, Blount, Dorsett, Mitchell and Jernigan, by James G. Billings, for defendant appellant, Ernest E. Ratliff.
Judge BECTON dissenting.
This claim arose from a car accident that occurred on 17 August 1979. The accident involved three vehicles. Claude Tolson Murdock was driving a 1977 Ford truck owned by Conner Homes Corporation eastbound on highway 64. Patrick Enyi Uzoh, who was killed in the accident, was driving a 1979 Plymouth westbound on highway 64. His car was owned by the North Carolina Department of Administration. Behind Uzoh, a 1974 Mack 18-wheeler truck, owned by Ernest Ray Cardwell, and operated by Michael Lane Moss, was travelling west on highway 64. As Uzoh approached Murdock, he suddenly stopped or slowed down almost to a stop, and Moss' truck struck Uzoh's car in the rear, causing the Plymouth to cross the center line into Murdock's path and strike Murdock's vehicle head-on. Murdock was injured in the collision, and the Conner Homes' truck and the trailer it was carrying were damaged. The Plymouth and the Mack truck were also damaged. Subsequently, the following lawsuits were brought. Conner Homes sued Ernest E. Ratliff, Administrator of Uzoh's estate, and Moss and Cardwell, alleging that their negligence caused property damage to Conner Homes' truck and trailer. Ratliff denied any negligence by Uzoh, and asserted crossclaims for contribution against codefendants Moss and Cardwell. Defendants Moss and Cardwell also denied negligence and asserted crossclaims against Ratliff for contribution and for property damage to Cardwell's truck. Murdock sued Ratliff and Moss and Cardwell alleging their negligence caused his personal injuries. The defendants denied negligence. Ratliff asserted crossclaims for contribution against Moss and Cardwell. Moss and Cardwell asserted crossclaims for contribution and for property damage against Ratliff. Cecilia Uzoh, Uzoh's widow, and Ratliff sued Moss and Cardwell seeking recovery for Uzoh's wrongful death and for loss of consortium. Moss and Cardwell denied negligence and counterclaimed for property damage to the truck. Ratliff and Mrs. Uzoh replied asserting the doctrine of last clear chance.
All three cases were consolidated for trial. The issues of damages in the wrongful death action and the loss of consortium action were severed; the issues remaining were: Murdock's claim for personal injuries, Conner Homes' claim for property damage, Ratliff's claim for wrongful death, Mrs. Uzoh's claim for loss of consortium, and Cardwell's claim for property damage.
Defendants Ratliff and Moss and Cardwell moved for directed verdicts at the close of Conner Homes' and Murdock's evidence. The motions were denied. Just before Ratliff's last witness testified, Ratliff introduced Murdock's complaint into evidence. The complaint alleged that Uzoh had been negligent by stopping on the highway, and his negligence was the proximate cause of the accident. At the close of Ratliff's evidence, Moss and Cardwell moved for a directed verdict. Their motion was denied. Cardwell asked for a voluntary dismissal on his counterclaim for property damage to his truck. Ratliff, Murdock and Conner Homes renewed their directed verdict motions, which were denied.
The parties stipulated that the following three issues would be submitted to the jury:
1. Were the plaintiffs, Conner Homes Corporation and Claude Tolson Murdock, damaged or injured as a result of the negligence of Patrick Enyi Uzoh, as alleged in their complaints?
2. Were the plaintiffs, Conner Homes Corporation and Claude Tolson Murdock, damaged or injured by the negligence of the defendant, Michael Lane Moss, as alleged in their complaints?
3. What amount of damages, if any, is the plaintiff Claude Tolson Murdock, entitled to recover?
While the jury was deliberating, Murdock, Conner Homes, Moss, and Cardwell renewed their motions for directed verdicts. The trial judge did not rule on these motions until the jury returned to the courtroom and the foreman announced they had not reached a verdict. Then the judge granted Moss', Cardwell's, and Murdock's motions for directed verdicts against Ratliff, and dismissed the wrongful death case. Judgment was entered in favor of Conner Homes in the amount of $24,231.00, the stipulated amount of property damage. Murdock's damages for his personal injury as against Ratliff were left to be determined at a subsequent trial. A mistrial was declared on issues two and three.
All four of appellant's assignments of error are that the trial court erred in directing verdict for Murdock, Conner Homes, Moss, and Cardwell. His first argument is that a procedural error was committed in allowing Murdock's and Conner Homes' motion because it was not timely since it was not made immediately after the close of defendant's evidence, but was made after the charge to the jury. Neither at trial nor on appeal has appellant suggested there might be other evidence he could have offered if he had known the motion was going to be made. Indeed, it seems clear from the record that as a matter of convenience the parties had agreed to put all their formal motions and stipulations in the record after the jury had retired. Appellant's argument is without merit.
Appellant also argues that it was procedurally incorrect for the trial judge to withhold his ruling on the directed verdict until after the jury announced that it was unable to reach a verdict. To support his argument, appellant relies on Hamel v. Young Spring Wire Corp., 12 N.C. App. 199, 182 S.E.2d 839, cert. denied, 279 N.C. 511, 183 S.E.2d 687 (1971). In Hamel, the trial judge did not rule on the motions for directed verdict until after the jury returned a verdict. This Court said:
We do not approve of this procedure and think it preferable to rule upon a motion for a directed verdict prior to the submission of a case to the jury. After a case has been submitted to a jury, the proper motion to be ruled upon at that time is a motion for judgment notwithstanding the verdict under Rule 50.
Hamel v. Young Spring Wire Corp., 12 N.C. App. at 205, 182 S.E.2d at 843. The Court's statement that it is preferable to rule on the motion before submitting the case to the jury is hardly grounds for reversal in the instant case. Moreover, the situation in Hamel is distinguishable from this case because in Hamel the jury had reached a verdict and a motion for judgment notwithstanding the verdict would have been appropriate, but here there was no verdict from which to request a judgment notwithstanding the verdict.
Appellant's next argument is that even if the motion for directed verdict was timely, it should not have been granted as a matter of law because Murdock and Conner Homes had the burden of proof. We do not agree. A verdict may be directed for the party with the burden of proof when the credibility of the movant's evidence is manifest as a matter of law. North Carolina National Bank v. Burnette, 297 N.C. 524, 256 S.E.2d 388 (1979); E. F. Hutton v. Stanley, 61 N.C. App. 331, 300 S.E.2d 463 (1983); 9 C. Wright A. Miller, Federal Practice and Procedure 2535 (1971). In Burnette, the Court listed three recurrent situations where credibility is manifest:
(1) Where non-movant establishes proponent's case by admitting the truth of the basic facts upon which the claim of proponent rests. [citations omitted.]
(2) Where the controlling evidence is documentary and non-movant does not deny the authenticity or correctness of the documents. [citations omitted.]
(3) Where there are only latent doubts as to the credibility of oral testimony and the opposing party has "failed to point to specific areas of impeachment and contradiction." [Kidd v. Early, 289 N.C. 343, 370, 222 S.E.2d 392, 410 (1976).]
North Carolina National Bank v. Burnette, 297 N.C. at 537-38, 256 S.E.2d at 396.
In the instant case, credibility was manifest under the third category set forth in Burnette. Latent doubts are "doubts which stem from the fact that plaintiffs are interested parties." Kidd v. Early, 289 N.C. at 371, 222 S.E.2d at 411. Aside from any consequences resulting from appellant's introduction of plaintiff's complaint into evidence, all the evidence at trial, viewed in the light most favorable to appellant, unequivocally shows that Uzoh either suddenly stopped or almost stopped on the highway, his car was hit from behind by Moss' truck, it crossed the center line, and then it collided with Conner Homes' truck. Regardless of whether Uzoh came to a full stop or almost stopped, it is clear that his conduct constituted negligence as a matter of law. Uzoh violated G.S. 20-141 (h) which provides, in part: "No person shall operate a motor vehicle on the highway at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law; . . ." Violation of the standard of care required by G.S. 20-141 (h) is negligence per se. Page v. Tao, 56 N.C. App. 488, 289 S.E.2d 910, affirmed per curiam, 306 N.C. 739, 295 S.E.2d 470 (1982). Appellant's evidence, introduced in their case in chief, neither contradicted any evidence of Uzoh's negligence nor materially impeached the appellees, it only tended to show that the weather was clear, the road in front of Uzoh's path was straight and unobstructed, the speed limit was fifty-five miles per hour, Uzoh's death was due to injuries received in the collision, and there was no evidence of alcohol or other drugs in his blood. On cross-examination, appellants attempted to impeach Moss and Murdock, but the contradictions brought out on cross-examination were trivial. They did not tend to show a lack of credibility, and had no bearing on the issue of Uzoh's negligence. The contradictions concerned the following questions: whether Uzoh came to a full stop, or almost stopped; how far away Moss' truck was before Murdock saw it; how fast Murdock thought Moss was going; whether Uzoh was 100 feet away or 100 yards away before Murdock saw him; whether smoke was coming from Uzoh's tires; and whether Moss saw Uzoh when he was 235, 750, or 1,500 feet away. These contradictions have no bearing on the issue of Uzoh's negligence, and they do not tend to show any contributory negligence by Murdock. There was no evidence which tended to refute the allegations that Uzoh was negligent, and his negligence was the proximate cause of the collision, and, aside from latent doubts, there were no doubts as to the credibility of the witnesses, therefore no reasonable jury could have drawn any contrary inferences. In short, the credibility of the movants' evidence was manifest, and directed verdict in the movants' favor was proper.
Additionally, credibility was manifest under the first category set forth in Burnette because appellant established Murdock's and Conner Homes' case by admitting that Uzoh was negligent when he introduced Murdock's complaint into evidence. The following occurred out of the presence of the jury:
Mr. Billings [counsel for Ratliff]: . . . I would like to introduce in evidence on behalf of Uzoh the Murdock complaint. I don't know the procedure for doing that.
Mr. Miller [counsel for Moss and Cardwell]: The defendants Moss and Cardwell will object.
. . .
Court: I understand, unverified. Any objection? Mr. Cranfill [counsel for Murdock and Conner Homes]: No sir.
Court: No objection. The Murdock complaint will be received into evidence with respect to Claude Tolson Murdock. The objection —
Mr. Miller: . . . I still object.
. . .
Court: Objection is sustained with respect to Moss and Cardwell. The complaint comes in then in terms of Murdock only.
. . .
Mr. Miller: If your Honor please, . . . if I may qualify that objection.
Court: All right, you may.
Mr. Miller: Is to that portion of the complaint as it relates to the two defendants that I represent. That is the purpose of my objection. Other than that, I have no objection.
Court: All right. Then the ruling is that it is sustained with respect to that portion of the complaint.
Murdock's complaint, which is his judicial admission, McCormick on Evidence 265 (2d ed. 1972), can only be offered as competent evidence as against Murdock, and the trial judge gave an appropriate limiting instruction. As against Murdock, however, it was offered without any limitations. The complaint, after alleging the circumstances of the collision alleges, in paragraph seven:
The aforementioned accident occurred as the direct and proximate result of the negligence of Patrick Enyi Uzoh in that he:
(a) Operated a vehicle upon the highways of the State of North Carolina without maintaining proper control over it.
(b) Operated a vehicle upon the highways of the State of North Carolina without maintaining a proper lookout.
(c) Operated a vehicle upon a highway of the State of North Carolina to the left side of the center line of the highway while meeting a vehicle being operated in the opposite direction.
(d) Brought his vehicle to a sudden and unexpected stop upon a highway of the State of North Carolina at a time when he knew or should have known that this would cause a collision.
(e) Attempted to stop a vehicle upon a highway of the State of North Carolina without first seeing that such movement could be made in safety.
(f) Attempted to stop a vehicle upon a highway of the State of North Carolina at a time when the operation of another vehicle might be affected by such movement, without giving the clear and plainly visible signal required by law.
A party offering into evidence, without limitation, as in the instant case, a portion of his opponent's pleading, is bound thereby. Smith v. Goldsboro Iron Metal Co., 257 N.C. 143, 125 S.E.2d 377 (1962); Smith v. Burleson, 9 N.C. App. 611, 177 S.E.2d 451 (1970). Smith v. Burleson also involved a car accident. The defendants were two brothers, Rabon and Tony Burleson. Tony died in the accident. At trial, plaintiff's witness, who had been a passenger in Tony's car, testified about the events that led up to the accident. She said that Rabon and Tony were driving west on Highway 64-70 at a speed between eighty and one hundred miles per hour. Tony pulled into the left lane to pass Rabon. Tony and Rabon overtook plaintiff's car, which was driving at fifty-five miles per hour in a westerly direction. Rabon pulled out into the left lane in front of Tony to avoid hitting plaintiff. When Rabon did this, Tony hit his brakes to avoid hitting Rabon, and skidded. The witness did not remember anything else about the accident. Defendants, however, offered evidence which filled in all the missing pieces of plaintiff's case. Rabon admitted he pled guilty to reckless driving in connection with the accident. He also introduced a portion of plaintiff's complaint which alleged that Rabon had been driving very fast, he collided with Tony's car causing Tony to lose control of his car and hit plaintiff's car, which caused it to drive off the road, into an embankment. The Court held that Rabon's evidence, including the portion of plaintiff's complaint which he introduced, established that he was negligent, Rabon was bound by the portion of plaintiff's pleading which he introduced without limitation, and, as there was no factual issue of negligence remaining, a directed verdict for plaintiff was proper.
In this case, appellant offered no evidence which materially contradicted the allegations of negligence in paragraph seven of Murdock's complaint. Murdock testified that Uzoh's vehicle came to a complete stop. Although Moss said both that Uzoh had completely stopped, and that he was not sure if Uzoh had completely stopped, this is only a slight variation in the evidence. Since Murdock's evidence as to Uzoh's negligence was not contradicted by appellant, and appellant admitted the truth of Murdock's allegations by introducing his complaint, the credibility of Murdock's evidence was manifest as a matter of law according to the first example set forth in Burnette, and Murdock's motion for a directed verdict was properly granted. Similarly, as it was undisputed that Murdock was driving Conner Homes' truck, and the parties stipulated the amount of damages sustained by Conner Homes was $24,231.00, the trial court properly granted Conner Homes' motion for a directed verdict.
Appellant's next argument is that the trial court erred in granting defendants Moss' and Cardwell's motions for directed verdict. A defendant's motion for directed verdict may be granted only if, as a matter of law, the evidence, when viewed in the light most favorable to plaintiff, is insufficient to justify a verdict for plaintiff. Kelly v. International Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). As we mentioned above, although Murdock's complaint was Murdock's judicial admission, appellant, when he offered it into evidence, became bound by the allegations in the complaint which were not contradicted by other evidence at the trial. Appellant, therefore, has admitted that Uzoh negligently stopped or attempted to stop his car on the highway. Since appellant has admitted his negligence was the proximate cause of the accident, he was contributorily negligent as a matter of law. In order for contributory negligence to apply plaintiff need not be actually aware of the unreasonable danger he has exposed himself to by his conduct, he may be contributorily negligent if he has ignored unreasonable risks which would have been apparent to a prudent person exercising ordinary care. Smith v. Fiber Controls Corp., 300 N.C. 669, 268 S.E.2d 504 (1980). The negligence of plaintiff need not be the sole proximate cause of his injury, his contributory negligence bars his recovery if the negligence is one of the proximate causes of the injury. Wallsee v. Carolina Water Co., 265 N.C. 291, 144 S.E.2d 21 (1965); U.S. Industries, Inc. v. Tharpe, 47 N.C. App. 754, 268 S.E.2d 824, review denied, 301 N.C. 90, 273 S.E.2d 311 (1980). On appeal, appellant does not argue that the doctrine of last clear chance applies to this case, so we have not addressed that issue. Since the evidence, even when viewed in the light most favorable to appellant, establishes contributory negligence as a matter of law, the trial court did not err in granting Moss' and Cardwell's motion for directed verdict.
For the reasons stated, the trial court's granting of appellee's motions for directed verdict is affirmed.
Affirmed.
Judge HILL concurs.
Judge BECTON dissents and files written opinion.