Hinnant v. Holland

• Decision Date: 06 December 1988
• Docket Number: No. 8811SC491,8811SC491
• Citation: 92 N.C.App. 142,374 S.E.2d 152
• Parties: Barney H. HINNANT, Administrator of the Estate of Sandra Leigh Hinnant, Deceased v. James Neal HOLLAND and James William Holland.
• Court: North Carolina Court of Appeals

Page 152

374 S.E.2d 152

92 N.C.App. 142

Barney H. HINNANT, Administrator of the Estate of Sandra Leigh Hinnant, Deceased v. James Neal HOLLAND and James William Holland.

No. 8811SC491.

Court of Appeals of North Carolina.

Dec. 6, 1988.

Dees, Smith, Powell, Jarrett, Dees & Jones by Tommy W. Jarrett, Goldsboro, for plaintiff-appellant.

LeBoeuf, Lamb, Leiby & MacRae by Peter M. Foley and R. Bradley Miller, Raleigh, for defendant-appellee.

BECTON, Judge.

This wrongful death action arose from a one-car accident in which a passenger was killed. From judgment entered on a jury verdict in favor of defendants, plaintiff appeals. For the reasons set out below, we reverse the judgment and remand for a new trial.

I

On 19 December 1985, defendant James Neal Holland ("Neal"), age 16, drove his high school classmates to the home of a needy family to deliver Christmas presents as part of a school project. Neal drove a Chevrolet Blazer owned by his father, the defendant James William Holland. On the trip back to school, Sandra Leigh Hinnant and another student rode with Neal. Sandra sat in the back seat. The Blazer overturned at a curve in the road, and Sandra was killed. The plaintiff, Barney Hinnant ("Sandra's father"), brought this action for wrongful death of his daughter, alleging that Neal's negligence resulted in her death.

The evidence presented at trial showed the following. The accident happened on a clear day on a dry road composed of clay and sand. The road was 20 feet wide, had no shoulders, and was bounded by shallow ditches. The center of the road was hard and compacted; the sides were softer and sandy. No signs warned of the upcoming curve, but Neal's view of it was unobstructed. He drove well within the speed limit of 55 m.p.h., and he applied his brakes when he realized the curve was sharper than he first thought. The right front wheel "locked" in the sand, the Blazer went into a skid and flipped twice. The fiberglass portion of the roof, directly over the backseat, was torn off as the Blazer rolled.

Neal's father testified that, due to its short wheel base, a Blazer does not "corner" well and is subject to overturning. He also testified that the road was paved the week following the accident. The former testimony of an unavailable witness, to the effect that four accidents had occurred at the same curve in as many years, was excluded as hearsay not within an exception.

Sandra's father appeals from a jury verdict finding Neal not negligent. He assigns error to (1) the denial of his motions for directed verdict and judgment notwithstanding the verdict; (2) the judge's refusal to give certain instructions to the jury; and (3) the admission of testimony on direct examination that Neal had no criminal convictions. Neal makes a cross-assignment of error to the exclusion of the unavailable witness' former testimony. We address these contentions in order.

II

Sandra's father first contends that denial of his motions for directed verdict and judgment notwithstanding the verdict was error, since, he argues, the evidence at trial established Neal's negligence as a matter of law. We disagree.

A motion for directed verdict, like a motion for judgment notwithstanding the verdict, challenges whether evidence presented at trial is legally sufficient to go to the jury. See Taylor v. Walker, 320 N.C. 729, 733, 360 S.E.2d 796, 799 (1987). A directed verdict or judgment notwithstanding the verdict may properly be entered in a negligence action "[o]nly in exceptional cases." Id. at 734, 360 S.E.2d at 799. "Issues arising in negligence cases are ordinarily not susceptible of summary adjudication because application of the prudent man test ... is generally for the jury." Id. (citations omitted). Courts are even more reluctant to grant the motion when, as here, the moving party bears the burden of proof.

A party with the burden of proof may be granted a directed verdict "when the credibility of the movant's evidence is manifest as a matter of law. " Murdock v. Ratliff, 310 N.C. 652, 659, 314 S.E.2d 518, 522 (1984) (emphasis added). The evidence "must so clearly establish the fact in issue that no reasonable inferences to the contrary can be drawn." Id. " 'Needless to say, the instances where credibility is manifest will be rare, and courts should exercise restraint in removing the issue of credibility from the jury.' " Id. at 660, 314 S.E.2d at 522 (emphasis removed) (quoting North Carolina National Bank v. Burnette, 297 N.C. 524, 538, 256 S.E.2d 388, 396 (1979)). This is not one of those rare cases.

To be entitled to a directed verdict or judgment notwithstanding the verdict, Sandra's father had to prove as a matter of law that Neal was negligent, and that his negligence was the proximate cause of the accident. See id. 310 N.C. at 662-63, 314 S.E.2d at 524. Sandra's father asserts that this burden was satisfied when Neal made the following statement at trial:

Looking back at it now, yes sir, I do think I was travelling a little bit too fast for the curve.

The father, quoting language from Burnette, argues that the evidence of Neal's negligence was "manifestly credible" since Neal "admitt[ed] the truth of the basic facts upon which the [negligence] claim rested." He further argues that any doubts regarding the testimony were "only latent doubts," and therefore that he was entitled to judgment in his favor as a matter of law.

In our view, reasonable minds could differ as to whether the accident that led to Sandra's death was proximately caused by Neal's negligence, particularly since the defendants' evidence, viewed in a light most favorable to Neal, suggested other causes for the accident. Giving Neal the benefit of all reasonable inferences to be drawn from the evidence, we cannot conclude that his negligence was established as a matter of law. See Taylor, 320 N.C. at 734, 360 S.E.2d at 799; Kennedy v. K-Mart Corp., 84 N.C.App. 453, 454-55, 352 S.E.2d 876, 877 (1987). Accordingly, we hold that the case was properly submitted to the jury and that the trial judge did not err in denying the father's motions for directed verdict and judgment notwithstanding the verdict.

III

Sandra's father next contends that the trial judge committed reversible error in refusing to give certain requested jury instructions.

A. Peremptory Instruction on Negligence

The trial judge declined to give a peremptory instruction tendered by Sandra's father which stated in relevant part: "All of the evidence tends to show that James Neal Holland was negligent, and that his negligence was a proximate cause of [Sandra's] death.... [T]here is no evidence to the contrary...." (Emphasis added.) Sandra's father contends that failure to give this instruction entitled him to a new trial. We reject that contention.

As we stated in Dobson v. Honeycutt, "[w]hen all the evidence suffices, if true, to establish the controverted fact, the [c]ourt may give a peremptory instruction--that is, if the jury finds the facts to be as all the evidence tends to show, it will answer the inquiry in an indicated manner." 78 N.C.App. 709, 712, 338 S.E.2d 605, 606-07 (1986) (citations omitted) (emphasis added). A peremptory instruction is proper only "when all evidence points in the same direction with but a single inference to be drawn." Catoe v. Helms Constr. & Concrete Co., 91 N.C.App. 492, 372 S.E.2d 331, 335 (1988) (emphasis added).

In the case before us, the trial judge properly refused to give the requested instruction because that instruction was not supported by all the evidence presented at trial. See Property Shop, Inc. v. Mountain City Inv. Co., 56 N.C.App. 644, 649, 290 S.E.2d 222, 225 (1982). Neal's evidence regarding the composition of the roadway, the absence of warning signs, the locking of the wheel, the Blazer's tendency to overturn, and evidence that Neal drove at or below the speed limit, all permitted more than the single inference that Neal was negligent.

B. Instruction on Negligence Per Se

The trial judge instructed the jury in part that North Carolina's motor vehicle law prohibits a motorist to drive a vehicle "at a speed greater than is reasonable and prudent under the conditions then existing." The instruction tracked verbatim the language in N.C.Gen.Stat. Sec. 20-141(a) (1987). The judge further instructed the jury that violation of that law is negligence. Sandra's father contends that the judge erred in failing to instruct the jury that violation of the statute is negligence per se, and he further contends that this failure entitled him to a new trial. We disagree.

When a statute sets a standard of care for the protection of others, violation of that statute is negligence per se. See generally Gore v. George J. Ball, Inc., 279 N.C. 192, 198, 182 S.E.2d 389, 392 (1971); Federated Mutual Insurance Co. v. Hardin, 67 N.C.App. 487, 489, 313 S.E.2d 801, 802-03 (1984). But in the absence of a safety statute, conduct is judged by the "reasonably prudent person" standard, a violation of which is negligence. Foy v. Bremson, 30 N.C.App. 662, 667, 228 S.E.2d 88, 91 (1976).

It is technically true that violation of Section 20-141(a)'s "reasonable and prudent" standard is negligence per se. See Cassetta v. Compton, 256 N.C. 71, 74, 123 S.E.2d 222, 224 (1961). Even so, we hold that the trial judge did not commit prejudicial error in instructing the jury that violation of the statute was negligence, since the practical effect of an instruction on negligence and negligence per se in regard to this statute would have been identical. In either case, the jury would be required to determine what was "reasonable and prudent" under the circumstances. See Foy, 30 N.C.App. at 666-67, 228 S.E.2d at 91 ("The judge, in effect, [would have] said that negligence is negligence.").

C. Instruction on Duty to Decrease Speed

Sandra's father next contends that the trial judge erred in failing to instruct the jury regarding the duty to decrease speed, and that as a...