Long v. Harris, No. COA99-454.
Decision Date | 18 April 2000 |
Docket Number | No. COA99-454. |
Citation | 137 NC App. 461,528 S.E.2d 633 |
Parties | Getty Dale LONG and Dale A. Long, Plaintiffs, v. Ron Russell HARRIS, Defendant. |
Court | North Carolina Court of Appeals |
Tippens & Zurosky, L.L.P., by Kirk S. Zurosky, Charlotte, for plaintiffs-appellants.
Crosswhite & Crosswhite, P.A., by William E. Crosswhite, Statesville, for defendant-appellee.
Plaintiffs Dale A. Long and Getty Dale Long (Mr. and Mrs. Long) appeal, assigning error to certain aspects of a jury trial resulting in a verdict in favor of defendant Ron Russell Harris. We conclude the trial court committed no error.
Relevant factual and procedural information includes the following: On 22 December 1995, Mrs. Long and defendant were each operating their automobiles in the same direction on U.S. Highway 70 in Burke County. As Mrs. Long conducted a right turn into the driveway of the residence of her son, Gary Long (Gary), defendant's automobile veered off the side of the roadway, jumped the curb, and impacted Mrs. Long's vehicle on the passenger side.
The case was tried before a jury 18 November 1998. Plaintiffs offered testimony from both Mr. and Mrs. Long and their son, Gary. During Gary's testimony, plaintiffs sought to introduce his observations of defendant's habitual manner of driving. Following a voir dire hearing, the trial court rejected the tendered evidence.
At the close of plaintiffs' evidence and again at the close of defendant's evidence, plaintiffs moved for directed verdict pursuant to N.C.G.S. § 1A-1, Rule 50(a) (1999), which motions were denied by the trial court. Over plaintiffs' objections, the trial court instructed the jury on the doctrine of sudden emergency. The jury returned a verdict in favor of defendant and plaintiffs timely appealed.
Plaintiffs first assign error to the exclusion of Gary's testimony regarding defendant's driving habits. This assignment of error is unfounded.
During the voir dire hearing conducted by the trial court, Gary testified he had been at home "every day" recovering from an eye injury during the "previous month before this accident happened," and that he had observed defendant operating his automobile on Highway 70 "every day" from a "picture window facing the road." According to Gary, defendant passed in front of his residence driving "[w]ide open as usual" on the day prior to the collision. Further, defendant had driven the "same way" on each previous occasion.
N.C.G.S. § 8C-l, Rule 406 (Rule 406) (1999).
Crawford v. Fayez, 112 N.C.App. 328, 332, 335, 435 S.E.2d 545, 548, 549 (1993), disc. review denied, 335 N.C. 553, 441 S.E.2d 113 (1994).
State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).
Given the vague and imprecise nature of Gary's testimony regarding defendant's speed (defendant was driving "wide open") and Gary's potential, albeit understandable, interest in the outcome of the case as the son of plaintiffs, we cannot say the trial court's ruling appears "manifestly unsupported by reason or ... so arbitrary that it could not have been the result of a reasoned decision." Id. The court therefore did not abuse its discretion by excluding Gary's testimony on this issue, see Crawford, 112 N.C.App. at 335,435 S.E.2d at 550, and plaintiffs' first assignment of error fails.
Plaintiffs next assign error to the trial court's denial of their motions for directed verdict. Originally, plaintiffs also assigned error to the denial of their new trial motion. However, as that point was not argued in plaintiffs' appellate brief, it is deemed abandoned under our Rules of Appellate Procedure (the Rules). See N.C.R.App. P. 28(b)(5) ().
Plaintiffs insist the evidence adduced at trial led to "no other possible logical conclusion other than that [defendant] was negligent" in that he operated his vehicle "at a speed that was greater than [wa]s reasonable and prudent under the conditions then existing" and did not "keep a reasonably careful lookout."
The question presented by a motion for a directed verdict is whether the evidence is sufficient to entitle the non-movant to have a jury decide the issue in question.
United Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988). Upon a motion for directed verdict, the evidence must be considered in the light most favorable to the non-movant, resolving all conflicts in the latter's favor, id., and giving to the non-movant "the benefit of all reasonable inferences that may be drawn from that evidence," Abels v. Renfro Corp., 335 N.C. 209, 215, 436 S.E.2d 822, 825 (1993).
Moreover, if 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 Laboratories, 322 N.C. at 662, 370 S.E.2d at 386.
In addition, we note our courts have repeatedly observed that it "is seldom appropriate to direct a verdict in a negligence action," Stanfield v. Tilghman, 342 N.C. 389, 394, 464 S.E.2d 294, 297 (1995), particularly in favor of the party with the burden of proof, see La Notte, Inc. v. New Way Gourmet, Inc., 83 N.C.App. 480, 484, 350 S.E.2d 889, 891 (1986) (, )cert. denied, 319 N.C. 459, 354 S.E.2d 888 (1987). Further, "[n]egligence is not presumed from the mere fact of injury." Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 68, 414 S.E.2d 339, 345 (1992).
Review of the evidence adduced at trial in the light most favorable to defendant, see United Laboratories, 322 N.C. at 661, 370 S.E.2d at 386, reveals the latter's testimony that he was driving at "[a]bout thirty, thirty-five" miles per hour when suddenly a "truck pull[ed] out ... [and] swerv[ed] in front of" him. According to defendant, he "turned [his] wheels to keep from hitting it and ... hit the brakes" and then "hit that curb thing and that's when [he] hit" Mrs. Long. Roger Willis, a witness to the collision, also testified that a truck crossed over Highway 70 just before the accident "quick like he saw somebody coming [and] wanted to speed up and hurry and get across."
Construing all inferences in defendant's favor as we must, see Abels, 335 N.C. at 215,436 S.E.2d at 825, the record thus reflects evidence that a truck suddenly crossed in front of the automobile operated by defendant, causing him to brake and swerve to his right to avoid colliding with that truck, whereupon he struck Mrs. Long's vehicle as she was turning into the driveway of her son's residence. Although plaintiffs presented conflicting evidence as to defendant's speed and opportunity to avoid the collision at issue, defendant's showing permitted the inference that he was not negligent. The trial court therefore properly denied the directed verdict motion of plaintiffs, the party with the burden of proof. See United Laboratories, 322 N.C. at 662, 370 S.E.2d at 386; see also La Notte, Inc.,83 N.C.App. at 484,350 S.E.2d at 891.
Lastly, plaintiffs contend the trial court erred by instructing the jury on the doctrine of sudden emergency. We do not agree.
[T]he doctrine of sudden emergency provides a less stringent standard of care for one who, through no fault of his own, is suddenly and unexpectedly confronted with imminent danger to himself or others.
Holbrook v. Henley, 118 N.C.App. 151, 153, 454 S.E.2d 676, 677-78 (1995). For the doctrine to apply, two elements must coincide. First, "an emergency situation must exist requiring immediate action to avoid injury." Conner v. Continental Industrial Chemicals, 123 N.C.App. 70, 73, 472 S.E.2d 176, 179 (1996). To satisfy this element, the party asserting the doctrine "must have perceived the emergency circumstance and reacted to it." Pinckney v. Baker, 130 N.C.App. 670, 673, 504...
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