Dorsey v. Buchanan

• Citation: 52 N.C.App. 597,279 S.E.2d 92
• Decision Date: 16 June 1981
• Docket Number: No. 809SC978,809SC978
• Court: North Carolina Court of Appeals
• Parties: Jon Harper DORSEY by his Guardian Ad Litem, Ronald S. Dorsey v. Michael Dennis BUCHANAN and H. O. Faulkner & Son, Inc.

Page 92

279 S.E.2d 92

52 N.C.App. 597

Jon Harper DORSEY by his Guardian Ad Litem, Ronald S. Dorsey v. Michael Dennis BUCHANAN and H. O. Faulkner & Son, Inc.

No. 809SC978.

Court of Appeals of North Carolina.

June 16, 1981.

Zollicoffer & Zollicoffer by Robert K. Catherwood, Henderson, for plaintiff-appellant.

Spears, Barnes, Baker & Hoof, by J. Bruce Hoof, Durham, for defendants-appellees.

WELLS, Judge.

Defendants' motions for a directed verdict at the close of plaintiff's evidence presented the question to the trial court for judgment and to us for review as to whether plaintiff's evidence was sufficient to justify a verdict in his favor.

On a motion by defendant for a directed verdict in a jury case, the court must consider the evidence in the light most favorable to the plaintiff and may grant the motion only if, as a matter of law, the evidence is insufficient to justify a verdict for the plaintiff. All the evidence which tends to support plaintiff's claim must be taken as true and viewed in the light most favorable to the plaintiff, giving the plaintiff the benefit of every reasonable inference which may be legitimately drawn therefrom. Dickinson v. Pake, 284 N.C. 576, 583, 201 S.E.2d 897, 902 (1974); Kelly v. Harvester Co., 278 N.C. 153, 158, 179 S.E.2d 396, 398 (1971); Home Products Corp. v. Motor Freight, Inc., 46 N.C.App. 276, 277, 264 S.E.2d 774, 775, disc. rev. denied, 300 N.C. 556, 270 S.E.2d 105 (1980). A trial court should deny a defendant's motion for a directed verdict under G.S. 1A-1, Rule 50(a) when reviewing the evidence in the light most favorable to the plaintiff and giving plaintiff the benefit of all reasonable inferences, the court finds any evidence more than a scintilla to support plaintiff's prima facie case in all its constituent elements. Hunt v. Montgomery Ward and Co., 49 N.C.App. 638, 640, 272 S.E.2d 357, 360 (1980).

Having reviewed plaintiff's evidence according to these rules, we find no evidence of negligence on the part of defendant Buchanan and hold that the trial court correctly granted defendants' motions.

We first note that speed is not at issue in this case. The parties stipulated that the truck was being driven "slowly" at the time of the collision. The evidence presented by plaintiff at trial sheds further light on this aspect of the events by showing that Buchanan was able to bring the truck to a complete stop after traveling only two feet following the collision. Plaintiff's sole contentions are that Buchanan, being familiar with the neighborhood, should have been on the lookout for children playing or riding near the street; that Buchanan could have and should have seen Jon approaching the street; and that his failure to see Jon and warn him of the truck's presence caused the collision. There are four circumstances which negate any such reasonable inference here. First, at the time Jon began his journey down the drive, he was fifty feet from the edge of the street. Second, Buchanan was driving on the far side of the street from the Dorsey driveway, putting another ten feet between the truck and the point of origin of Jon's journey. Third, Buchanan's view of the lower portion of the Dorsey driveway was partially obstructed by a parked car. The fourth and...