Opinion
No. COA04-743
Filed 5 April 2005 This case not for publication
Appeal by plaintiff from order entered 9 October 2003 by Judge Robert P. Johnston in Mecklenburg County Superior Court. Heard in the Court of Appeals 13 January 2005.
Wm. Benjamin Smith, for plaintiff-appellant. Morris York Williams Surles Barringer, L.L.P., by John P. Barringer, for defendant-appellee.
Mecklenburg County No. 02 CVS 5118.
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." Although plaintiff 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 be drawn 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).