Opinion
No. COA10-1016
Filed 3 May 2011 This case not for publication
Appeal by plaintiff from order entered 4 May 2010 by Judge Mark E. Powell in Rutherford County Superior Court. Heard in the Court of Appeals 9 February 2011.
William Benjamin Smith, for plaintiff-appellant. Bolster Rogers McKeown, LLP, by Jeffrey S. Bolster, for defendant-appellee.
Rutherford County No. 08 CVS 651.
Ashley P. Vickers ("plaintiff") appeals the trial court's order denying her motions for judgment notwithstanding the verdict ("JNOV") and new trial. Plaintiff contends the court erred by submitting the issue of her contributory negligence to the jury. We affirm.
I. BACKGROUND
On the late afternoon of 23 June 2007, plaintiff was operating a red Kia traveling east at 55 miles per hour ("mph") on Hudlow Road at the intersection of Hudlow and Whiteside Roads ("the intersection") in Rutherford County, North Carolina. At the same time, defendant was operating his vehicle traveling south on Whiteside Road at the intersection. The weather was clear and traffic was light.
Defendant encountered a flashing red traffic light and a stop sign as his vehicle approached the intersection. As plaintiff's vehicle approached the intersection, she encountered a flashing yellow traffic light, which was activated by defendant's vehicle as it approached the intersection. Plaintiff also encountered "rumble strips" on the road as she approached the intersection. The rumble strips were intended to inform drivers to slow down as they approached the intersection.
As plaintiff approached the intersection, she reduced her speed "to about 50, just letting off the accelerator." Plaintiff then observed defendant's vehicle stopped at the intersection. Plaintiff observed that defendant was looking away from plaintiff and appeared to be talking on a cell phone. Defendant then entered the intersection, and plaintiff applied her brakes, causing her vehicle to skid approximately 20 feet. Plaintiff and defendant's car collided. Plaintiff sustained injuries and both vehicles were damaged. Plaintiff was taken to a nearby hospital for treatment of her injuries.
On 27 May 2008, plaintiff filed an amended complaint in Rutherford County Superior Court, alleging negligence on the part of defendant. On 29 August 2008, defendant answered, denying negligence and alleging contributory negligence on the part of plaintiff. Plaintiff's case was heard before the 25 January 2010 civil session of Rutherford County Superior Court. Defendant did not present evidence. At the close of plaintiff's evidence and the close of all the evidence, plaintiff moved for a directed verdict on the issue of contributory negligence, and the trial court denied both motions.
On 27 January 2010, the jury returned a verdict finding that plaintiff was injured by defendant's negligence, but that plaintiff, through her own negligence, contributed to her injuries. The trial court's judgment included the jury's verdict and ordered that plaintiff shall recover nothing from defendant. Following the verdict, plaintiff moved for JNOV and a new trial, and the trial court denied plaintiff's motions in an order filed 4 May 2010 ("the 4 May 2010 order"). Plaintiff appeals the 4 May 2010 order.
II. JNOV
Plaintiff argues that the trial court erred by denying her motion for JNOV as the evidence was insufficient for the jury to find contributory negligence. We disagree.
A. Standard of Review
The power of the court to set aside the verdict as a matter of discretion has always been inherent, and is necessary to the proper administration of justice. The trial judge is vested with the discretionary authority to set aside a verdict and order a new trial whenever in his opinion the verdict is contrary to the greater weight of the credible testimony. Since such a motion requires his appraisal of the testimony, it necessarily invokes the exercise of his discretion. It raises no question of law, and his ruling thereon is irreviewable in the absence of manifest abuse of discretion.Britt v. Allen, 291 N.C. 630, 634-35, 231 S.E.2d 607, 611 (1977) (citation and quotation marks omitted). "The test for determining the sufficiency of the evidence when ruling on a motion for judgment notwithstanding the verdict is the same as that applied when ruling on a motion for directed verdict." Northern Nat'l Life Ins. v. Miller Mach. Co., 311 N.C. 62, 69, 316 S.E.2d 256, 261 (1984) (citing Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973)). "A motion for judgment notwithstanding the verdict `is essentially a renewal of an earlier motion for directed verdict.'" Scarborough v. Dillard's, Inc., 363 N.C. 715, 720, 693 S.E.2d 640, 643 (2009) (quoting Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 368-69, 329 S.E.2d 333, 337 (1985) (citation omitted)). "A motion for directed verdict `tests the legal sufficiency of the evidence to take the case to the jury and support a verdict' for the nonmovant." Id. (quoting Manganello v. Permastone, Inc., 291 N.C. 666, 670, 231 S.E.2d 678, 680 (1977)) (citation omitted). "The standard of review of directed verdict is whether the evidence, taken in the light most favorable to the non-moving party, is sufficient as a matter of law to be submitted to the jury." Davis v. Dennis Lilly Co., 330 N.C. 314, 322, 411 S.E.2d 133, 138 (1991) (citation omitted).
B. Contributory Negligence
"In the case of an affirmative defense, such as contributory negligence, a motion for directed verdict is properly granted against the defendant where the defendant fails to present more than a scintilla of evidence in support of each element of his defense." Snead v. Holloman, 101 N.C. App. 462, 464, 400 S.E.2d 91, 92 (1991). A directed verdict is rarely appropriate on the issue of contributory negligence. Stallings v. Food Lion, Inc., 141 N.C. App. 135, 138, 539 S.E.2d 331, 333 (2000). A directed verdict on the issue of contributory negligence is only appropriate "[w]hen the evidence adduced at trial establishes contributory negligence so clearly that no other conclusion may be reasonably drawn therefrom[.]" Bass v. Johnson, 149 N.C. App. 152, 155-56, 560 S.E.2d 841, 844 (2002). "Where more than one conclusion can reasonably be drawn, determination of the issue is properly left for the jury." Id. at 156, 560 S.E.2d at 844.
"No person shall drive a vehicle on a highway or in a public vehicular area at a speed greater than is reasonable and prudent under the conditions then existing." N.C. Gen. Stat. § 20-141(a) (2009).
Because contributory negligence is an affirmative defense, the burden [is] on the [defendant] to prove that there [is] more than a scintilla of evidence supporting each element of contributory negligence. Evidence that a party was exceeding the posted speed limit is sufficient to send the issue of contributory negligence to the jury.
Hoffman v. Oakley, 184 N.C. App. 677, 683, 647 S.E.2d 117, 122 (2007) (internal citation omitted). See also Whisnant v. Herrera, 166 N.C. App. 719, 723, 603 S.E.2d 847, 850 (2004) (evidence that plaintiff was "exceed[ing] the speed limit" justified submission of issue of plaintiff's contributory negligence to the jury). Furthermore, operation of a motor vehicle in excess of the applicable limits set forth in N.C. Gen. Stat. § 20-141(a) is negligence per se. Hinnant v. Holland, 92 N.C. App. 142, 374 S.E.2d 152 (1988).
Plaintiff cites Maye v. Gottlieb, 125 N.C. App. 728, 482 S.E.2d 750 (1997), to support her argument that the trial court erred by denying her motion for JNOV. Maye, however, is distinguishable from the instant case. In Maye, this Court held that the trial court properly granted a directed verdict for the plaintiff on the issue of the plaintiff's contributory negligence because " [a]ll of the evidence presented establishes that plaintiff was driving within the speed limit." Id. at 730, 482 S.E.2d at 751 (emphasis added). Furthermore, we held that the directed verdict was proper because the defendants "provided no other evidence that plaintiff failed to use due care at the time of the accident." Id. at 730, 482 S.E.2d at 752 (emphasis added).
In the instant case, unlike Maye, there is evidence that plaintiff exceeded the speed limit. Trooper B.Y. Hill ("Trooper Hill") of the North Carolina Highway Patrol investigated the accident. Trooper Hill testified that the speed limit for drivers proceeding east on Hudlow Road approaching the intersection was 45 mph. Trooper Hill also testified that when he investigated the accident at the scene, plaintiff told him she thought she was traveling approximately 50 mph. The intersection was equipped with "rumble strips" on Hudlow Road, which were designed to alert drivers to slow down as they entered the intersection. Furthermore, when defendant entered the intersection, his vehicle activated a flashing yellow light alerting drivers approaching the intersection from Hudlow Road that traffic was entering the intersection from Whiteside Road.
Plaintiff testified that she was traveling 55 mph on Hudlow Road and reduced her speed to "about 50, just letting off the accelerator" as she approached the intersection. Plaintiff was familiar with the intersection, and described it as "very deadly," "dangerous," and "a blind curve." She also testified that a driver in defendant's location could have seen only approximately three car-lengths to his right, the direction from which plaintiff was traveling. Plaintiff further testified that her own concerns about the intersection caused her to reduce her speed "just a little bit" as she approached the intersection.
This evidence, taken in the light most favorable to the non-moving party, shows that there was more than a scintilla of evidence of plaintiff's contributory negligence in that she exceeded the posted speed limit in violation of N.C. Gen. Stat. § 20-141(a) as she approached the intersection. Furthermore, this evidence shows that plaintiff failed to use due care at the time of the accident. She knew the intersection was dangerous and that defendant had limited visibility to observe drivers approaching from plaintiff's direction. Plaintiff encountered rumble strips and a flashing yellow light. Nonetheless, she slowed down only "a little bit" as she approached the intersection.
As a result, it was for the jury to determine whether plaintiff's own negligence contributed to her injuries, and the jury's verdict was not contrary to the greater weight of the credible testimony. Therefore, the trial court properly exercised its discretion by denying plaintiff's motion for JNOV. Plaintiff's issue on appeal is overruled.
III. NEW TRIAL
Plaintiff argues that the trial court erred by denying her motion for a new trial pursuant to N.C. Gen. Stat. § 1A-1, Rule 59(a)(7) (2009) ("Rule 59(a)(7)") where there was insufficient evidence to justify the verdict and the verdict was contrary to law. We disagree.
Under Rule 59(a)(7), the trial court may grant a new trial for "[i]nsufficiency of the evidence to justify the verdict or that the verdict is contrary to law[.]" N.C. Gen. Stat. § 1A-1, Rule 59(a)(7). "The term `insufficiency of the evidence' means that the verdict is against the greater weight of the evidence." Strum v. Greenville Timberline, LLC, 186 N.C. App. 662, 667, 652 S.E.2d 307, 310 (2007) (quoting In re Will of Buck, 350 N.C. 621, 624, 516 S.E.2d 858, 860 (1999) (citation omitted)). "It is the jury's function to weigh the evidence and to determine the credibility of witnesses." Anderson v. Hollifield, 345 N.C. 480, 483, 480 S.E.2d 661, 664 (1997).
This Court applies an abuse of discretion standard of review when reviewing the denial of a motion for new trial. Garrison v. Garrison, 87 N.C. App. 591, 594, 361 S.E.2d 921, 923 (1987). A trial court's discretionary decision to deny or grant a new trial may be reversed on appeal "only when the record affirmatively demonstrates a manifest abuse of discretion." Id. This Court must determine whether the verdict represents an injustice and is against the greater weight of the evidence. See In re Will of Buck, 350 N.C. 621, 516 S.E.2d 858 (1999). Because "the trial court has directly observed the evidence as it was presented and the attendant circumstances, as well as the demeanor and characteristics of the witnesses," a trial court's ruling on a motion for new trial is given great deference. Id. at 628, 516 S.E.2d at 863.
Kummer v. Lowry, 165 N.C. App. 261, 263, 598 S.E.2d 223, 225 (2004). "`[W]hen rulings are committed to the sound discretion of the trial court[,] they will be accorded great deference and will not be set aside unless it can be shown that they were arbitrary and not the result of a reasoned decision.'" Overton v. Purvis, 162 N.C. App. 241, 245, 591 S.E.2d 18, 22 (2004) (quoting Albritton v. Albritton, 109 N.C. App. 36, 42, 426 S.E.2d 80, 84 (1993)). When the record reveals that competent evidence was presented at trial to support the jury's verdict, the trial court properly exercises its discretion by denying a party's motion for a new trial. See, e.g., Strum, 186 N.C. App. at 667, 652 S.E.2d at 310.
In the instant case, the only "fact" that plaintiff presents in her brief to show that the trial court abused its discretion by denying her motion for a new trial is that "the trial [court] justified submitting an issue of contributory negligence [to the jury] based upon a false assumption that the [p]laintiff was exceeding the posted speed limit at the time of the accident." However, Trooper Hill testified on direct examination regarding the speed limit at the intersection:
Q [Counsel for plaintiff]: At the time of this accident what was the speed limit on Hudlow Road?
A [Trooper Hill]: Hudlow Road is — actually, it's 45 coming up to this intersection. And some ways down north, I guess, of this intersection on Hudlow it steps up to 55 as it's going down the hill.
Trooper Hill also testified that when he investigated the accident at the scene, plaintiff told him she thought she was traveling approximately 50 mph. Plaintiff testified that she was traveling 55 mph on Hudlow Road and "slowed down just a little bit" to "about 50, just letting off the accelerator" as she approached the intersection. This is competent evidence to support the jury's finding that plaintiff, through her own negligence, contributed to her injuries by exceeding the posted speed limit.
Plaintiff does not present any other facts or evidence in her brief to show that the trial court abused its discretion by denying her motion for a new trial. Plaintiff does not point to any other particular portions of testimony, any other particular evidence, or any other specific facts of this case which would support a ruling by this Court that the trial court abused its discretion in denying her motion for a new trial. Therefore, plaintiff has not met her burden of showing that the trial court's ruling was arbitrary and was not the result of a reasoned decision. Plaintiff's issue on appeal is overruled.
IV. CONCLUSION
The trial court properly denied plaintiff's motions for JNOV and new trial. The trial court's 4 May 2010 order is affirmed.
Affirmed.
Judges STROUD and HUNTER, JR., Robert N. concur.
Report per Rule 30(e).