Christmas v. Greyhound Lines Inc
| Decision Date | 01 February 2011 |
| Docket Number | NO. COA10-859,No. 09 CVD 5845,COA10-859,09 CVD 5845 |
| Court | North Carolina Court of Appeals |
| Parties | FRANCES CHRISTMAS, Plaintiff v. GREYHOUND LINES, INC., SHIELDS CANDIDO JONES, KATAY LOGISTICS, LLC and ALBERTO BARRETO, Defendants |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Appeal by plaintiff from order entered 28 December 2009 and orders entered 3 March 2010 by Judge Robert B. Rader in Wake County District Court. Heard in the Court of Appeals 15 December 2010.
E. Gregory Stott, for plaintiff-appellant.
Burton & Sue, L.L.P., by Gary K. Sue and Stephanie W. Anderson, for defendants-appellees Katay Logistics, LLC, and Alberto Barreto.
Frances Christmas ("plaintiff") appeals an order entered upon a jury verdict finding that plaintiff was not injured by the negligence of Alberto Barreto ("Barreto"), and orders entered 3 March 2010 denying plaintiff's motions for judgment notwithstanding the verdict ("JNOV") and a new trial, and granting Barreto's and Katay Logistics, LLC's ("Katay") (collectively "defendants"), motion to tax costs. We affirm.
At 8:30 a.m. on 6 January 2009, plaintiff rode as a "passenger for hire" in a commercial bus operated by Shields Candido Jones ("Jones") and owned by Greyhound Lines, Inc. ("Greyhound"). While Jones drove the bus on the westbound side of U.S. Highway 64 Bypass in Wake County, North Carolina, Barreto hit the bus while he operated a tractor-trailer owned by Katay. Plaintiff was injured as a result of the accident.
On 24 March 2009, plaintiff filed a complaint in Wake County District Court against defendants, Greyhound, and Jones, alleging negligence, and seeking, inter alia, in excess of $10,000.00 for personal injuries and attorney's fees. On 28 April 2009, Greyhound and Jones answered, denied negligence and asserted crossclaims of indemnity and contribution against defendants. On 28 May 2009, defendants answered, denied negligence and asserted crossclaims of indemnity and contribution against Greyhound and Jones.
The case was heard before the 16 November 2009 civil session of Wake County District Court. At the close of plaintiff's evidence, plaintiff moved for a directed verdict on the issue of defendants' negligence and the issue of proximate cause. The trial court denied the motion. At the close of all the evidence, Jones and Greyhound moved for a directed verdict on the issue of theirnegligence against plaintiff. The trial court granted Jones' and Greyhound's motion.
Plaintiff does not appeal the order granting Jones' and Greyhound's motion for a directed verdict, and neither Greyhound nor Jones have filed a brief in the instant appeal. Therefore, they are not parties to this appeal. Furthermore, plaintiff moved for a directed verdict on the issue of defendants' negligence. The trial court denied the motion.
On 18 November 2009, the jury returned a verdict finding that plaintiff was not injured by Barreto's negligence. On 28 December 2009, the trial court filed an order memorializing the verdict ("the 2009 order"). On 8 January 2010, plaintiff moved for a JNOV pursuant to Rule 50 and a new trial pursuant to Rule 59. On 1 February 2010, defendants moved to tax the costs of the case to plaintiff.
On 3 March 2010, the trial court denied plaintiff's motions for JNOV and a new trial, and granted defendants' motion to tax costs to plaintiff ("the 2010 orders"). Plaintiff appeals the 2009 order and the 2010 orders (collectively "the orders").
Plaintiff argues that the trial court erred in denying her motions for directed verdict on the issue of defendants' negligence. We disagree.
"Our Court reviews a trial court's ruling on a motion for directed verdict de novo." Stark v. Ford Motor Co., _____ N.C. App. _____, _____, 693 S.E.2d 253, 257 (2010).
Id. (quoting Davis v. Dennis Lilly Co., 330 N.C. 314, 322-23, 411 S.E.2d 133, 138 (1991)(internal citations omitted)).
Directed verdicts for the party with the burden of proof are rarely granted. Bank v. Burnette, 297 N.C. 524, 536, 256 S.E.2d 388, 395 (1979). "This is so because, even though proponent succeeds in the difficult task of establishing a clear and uncontradicted prima facie case, there will ordinarily remain in issue the credibility of the evidence adduced by proponent." Id. Nonetheless, "where credibility is manifest as a matter of law," a directed verdict for the party with the burden of proof is proper "if the evidence so clearly establishes the fact[s] in issue that no reasonable inferences to the contrary can be drawn." Id.
O'Carroll v. Texasgulf, Inc., 132 N.C. App. 307, 313, 511 S.E.2d 313, 318 (1999). "[A]s the finder of fact, the jury is 'entitled to draw its own conclusions about the credibility of the witnesses and the weight to accord the evidence.'" Horne v. Vassey, 157 N.C. App. 681, 687, 579 S.E.2d 924, 928 (2003) (quoting Smith v. Price, 315 N.C. 523, 530-31, 340 S.E.2d 408, 413 (1986)).
"[A] directed verdict... may be entered in favor of the party with the burden of proof 'where credibility is manifest as a matter of law.'" Smith, 315 N.C. at 527, 340 S.E.2d at 411 (quoting Burnette, 297 N.C. at 536, 256 S.E.2d at 395). "However, in order to justify granting a motion for a directed verdict infavor of the party with the burden of proof, the evidence must so clearly establish the fact in issue that no reasonable inferences to the contrary can be drawn." Murdock v. Ratliff, 310 N.C. 652, 659, 314 S.E.2d 518, 522 (1984) (citing Burnette, 297 N.C. at 536, 256 S.E.2d at 395.). "[I]f there is conflicting testimony that permits different inferences, one of which is favorable to the non-moving party, a directed verdict in favor of the party with the burden of proof is improper." United Lab. v. Kuykendall, 322 N.C. 643, 662, 370 S.E.2d 375, 387 (1988).
In the instant case, Jones testified on direct examination that on 6 January 2009, he was operating the bus in the right-hand lane of U.S. Highway 64, traveling approximately 62 to 65 miles per hour, when he saw the tractor-trailer in his mirror. Jones observed the tractor-trailer approaching in the left-hand lane, so Jones steered the bus into an "extra lane to the right" because under Greyhound's standard, drivers are "always supposed to drive in the right lane." As Jones steered the bus into the "extra lane," he felt the tractor-trailer hit the bus. He then moved over to the "extra lane" and tried to stop the bus. Jones denied swerving out of his lane and into the tractor-trailer's lane, and stated the tractor-trailer swerved into his lane.
While defendants offered no evidence, on cross-examination, Jones testified that he started driving on the evening of 4-5 January 2009. By the morning of the accident, he had driven the bus for nine-and-a-half hours, from New York City to North Carolina. Jones explained that the bus was 11.5 feet wide withtinted windows. Jones also testified that it was raining, the traffic was heavy, and a blind spot impaired his ability to see out of his side mirrors on the bus. Jones further testified that when he first saw the tractor-trailer in his rear-view mirror, it was not speeding, and that he did not see the impact between the tractor-trailer and the bus.
Jones' statements on cross-examination show that there is an issue of credibility regarding his testimony and whether he actually knew how the accident happened. Therefore, the jury was entitled to draw its own conclusion about Jones' credibility and the weight to accord his testimony. Furthermore, according to the evidence, this appeared to be a "side-swipe" accident across two lanes of travel going in the same direction. The jury could have chosen to believe that either Jones or Barreto crossed into the other lane before the side-swipe occurred. Thus, there was conflicting testimony which permitted the jury to draw one of two inferences, one of which was favorable to defendants as the non-moving parties. When there is conflicting testimony that permits different inferences, one of which is favorable to the non-moving party, the trial court must deny the moving party's motion for a directed verdict. United Lab., 322 N.C. at 662, 370 S.E.2d at 387. Therefore, in the instant case, the trial court properly denied plaintiff's motions for a directed verdict.
Plaintiff argues that the trial court erred in its instructions of law to the jury. We disagree.
"In reviewing the trial court's decision to give or not give a jury instruction, the preliminary inquiry is whether, in the light most favorable to the proponent, the evidence presented is sufficient to support a reasonable inference of the elements of the claim asserted." Blum v. Worley, 121 N.C. App. 166, 168, 465 S.E.2d 16, 18 (1995). Should the trial court choose to charge the jury with regard to the claim, the court will consider the charge "contextually and in its entirety." Bass v. Johnson, 14 9 N.C. App. 152, 160, 560 S.E.2d 841, 847 (2002). "The charge will be held to be sufficient if 'it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed[.]'" Hughes v. Webster, 175 N.C. App. 726, 730, 625 S.E.2d 177, 180-81 (quoting Jones v. Development Co., 16 N.C. App. 80, 86-87, 191 S.E.2d 435, 440, cert. denied, 282 N.C. 304, 192 S.E.2d 194 (1972)), disc, review denied, 360 N.C....
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