Dunn v. Herring, 844SC1018

• Decision Date: 18 June 1985
• Docket Number: No. 844SC1018,844SC1018
• Citation: 330 S.E.2d 834,75 N.C.App. 308
• Parties: Joyce Elaine DUNN v. David Scott HERRING and George Dillan Smith.
• Court: North Carolina Court of Appeals

Page 834

330 S.E.2d 834

75 N.C.App. 308

Joyce Elaine DUNN v. David Scott HERRING and George Dillan Smith.

No. 844SC1018.

Court of Appeals of North Carolina.

June 18, 1985.

Allen, Hooten & Hodges, P.A. by John R. Hooten and John C. Archie, Kinston, for defendants.

Thompson & Ludlum by E.C. Thompson, III, Warsaw, for plaintiff.

JOHNSON, Judge.

Defendants contend that the trial court erred in denying their motions for directed verdict and for judgment notwithstanding the verdict on the grounds that plaintiff's evidence established her contributory negligence as a matter of law.

Plaintiff's evidence revealed the following: Plaintiff was traveling from Greenville to her parents' home located near Warsaw on Rural Paved Road 1300. After leaving Greenville at approximately 5:30 p.m. on Highway 11, plaintiff turned onto Rural Road 1300 headed in a westernly direction. Plaintiff was driving a 1979 Chevrolet Monza, a compact two-door car. At the time plaintiff was proceeding on Rural Paved Road 1300, it was dark but the weather conditions were clear. In an area known as Benson's Garage, plaintiff had just come out of a curve when she first observed the headlights of an oncoming vehicle in the eastbound lane. Plaintiff reduced her speed from fifty-five miles per hour to about thirty-five miles per hour. The vehicle looked like a large vehicle because the lights were up high. Plaintiff believed the vehicle was moving very slowly, if moving at all. She stated that, "being raised in the country, I was used to farm trucks being on the roads, so I slowed down to see what course it would follow." The distance from the curve where plaintiff first observed the headlights to defendants' vehicle was about two tenths of a mile. Plaintiff did not observe any type of warning devices, flagmen or anything else to put her on notice that defendants' vehicle was across her lane of travel. Plaintiff stated that she did not see defendants' tractor-trailer at any time before the collision. Plaintiff did not apply her brakes since the headlights were in the eastbound lane and she was unaware of the trailer portion of defendants' vehicle being across her lane of travel. After the collision, plaintiff was taken to New Hanover Memorial Hospital suffering from body injuries. Plaintiff's vehicle was badly damaged.

The evidence also revealed defendant Herring, the driver of the tractor-trailer involved in the collision, was backing the tractor-trailer into a driveway off Rural Paved Road 1300. The tractor portion of the vehicle was located in the eastbound lane of traffic and the trailer portion was extended across the westbound lane of traffic. There were no flares or warning devices placed at or near the tractor-trailer. The headlights of the tractor portion of the vehicle were lit, but the trailer portion was unlit.

First, we take judicial notice of the fact this case was previously before this Court. Dunn v. Herring, 67 N.C.App. 306, 313 S.E.2d 22 (1984). The issue before us now is the identical issue presented in the earlier appeal; whether plaintiff's evidence established her contributory negligence as a matter of law, thus barring her recovery. After a thorough review of the facts and application of the relevant legal principles, this Court in the prior action found that plaintiff's evidence did not establish her contributory negligence as a matter of law and reversed the directed verdict granted in defendants' favor and the case was remanded for a new trial. We have reviewed the entire record before us and find that plaintiff has presented substantially the same evidence.

The only difference between the case sub judice and the previous case before this Court, Dunn, supra, is that defendants in our case also moved for a judgment notwithstanding the verdict. However, the test to be applied in considering a motion for judgment notwithstanding the verdict is the same as that applied in considering a motion for a directed verdict. Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973). Therefore, we find that the trial court properly denied defendants' motions for directed verdict and judgment notwithstanding the verdict. Dunn, supra.

Defendant...