Snead v. Holloman

• Decision Date: 05 February 1991
• Docket Number: No. 9011SC366,9011SC366
• Citation: Snead v. Holloman, 400 S.E.2d 91, 101 N.C.App. 462 (N.C. App. 1991)
• Parties: James Otis SNEAD, Plaintiff, v. Jimmy Junior HOLLOMAN and Flowers Baking Company of High Point, Inc., Defendants.
• Court: North Carolina Court of Appeals

Page 91

400 S.E.2d 91

101 N.C.App. 462

James Otis SNEAD, Plaintiff, v.Jimmy Junior HOLLOMAN and Flowers Baking Company of High Point, Inc., Defendants.

No. 9011SC366.

Court of Appeals of North Carolina.

Feb. 5, 1991.

Lucas, Bryant & Denning, P.A. by Robert W. Bryant, Selma, for plaintiff-appellee.

Burns, Day & Presnell, P.A. by Daniel C. Higgins, Raleigh, for defendants-appellants.

WYNN, Judge.

I

Defendants first assign as error the trial judge's granting of the plaintiff's motion for a directed verdict on the issue of contributory negligence.The defendants assert that the evidence at trial was sufficient to show that the plaintiff was negligent in the operation of his vehicle and that, therefore, the issue of contributory negligence should have been submitted to the jury.We disagree.

The purpose of a motion for directed verdict is to test the legal sufficiency of the evidence to take the case to the jury and to support a verdict for the nonmoving party.Wallace v. Evans, 60 N.C.App. 145, 146, 298 S.E.2d 193, 194(1982).In passing upon a motion for a directed verdict, the evidence should be considered in the light most favorable to the nonmoving party, and such party should be given the benefit of all reasonable inferences.Manganello v. Permastone, Inc., 291 N.C. 666, 670, 231 S.E.2d 678, 680(1977).If there is more than a scintilla of evidence supporting each element of the nonmovant's case, the motion for directed verdict should be denied.Broyhill v. Coppage, 79 N.C.App. 221, 226, 339 S.E.2d 32, 36(1986).In the case of an affirmative defense, such as contributory negligence, a motion for directed verdict is properly granted against the defendant where the defendant fails to present more than a scintilla of evidence in support of each element of his defense.SeeBooker v. Everhart, 33 N.C.App. 1, 15, 234 S.E.2d 46, 56(1977), rev'd on other grounds, 294 N.C. 146, 240 S.E.2d 360(1978);Price v. Conley, 21 N.C.App. 326, 204 S.E.2d 178(1974)(On an affirmative defense, the burden of proof lies with the defendant);Clary v. Alexander County Bd. of Educ., 286 N.C. 525, 212 S.E.2d 160(1975)(Contributory negligence is an affirmative defense, and the burden of proof on the issue rests on defendant).

This court has previously addressed the propriety of granting a motion for directed verdict against defendants who raise an affirmative defense.In Booker v. Everhart, supra, plaintiffs, by way of assignment, were the holders of a promissory note executed by one defendant and guaranteed by two others.When the defendants failed to make payment on the note, the plaintiffs instituted an action to enforce the defendants' respective obligations.In answer to the complaint, the defendants raised several affirmative defenses, including duress, failure of consideration, and illegality.At trial, the court entered a directed verdict in favor of the plaintiffs at the close of all the evidence.

In Booker, the defendants asserted on appeal that since they had raised affirmative defenses, it was improper for the trial judge to direct a verdict in the plaintiffs' favor.It was the defendants' contention that by denying material allegations of the plaintiffs' complaint, they had raised issues of fact which the plaintiffs had the burden of proving.According to the defendants, the entry of the directed verdict in favor of the party with the burden of proof was improper under the holding in Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297(1971).

While adhering to the ruling in Cutts, the Booker court disagreed with the defendants' interpretation of its meaning.The court stated that once the plaintiffs had established their right to recover on the note, the burden of proof of the affirmative defenses shifted to the defendants.Booker, 33 N.C.App. at 14-15, 234 S.E.2d at 56.The court went on to hold that the defendants' evidence was insufficient to create an issue of fact and, therefore, the entry of the directed verdict in favor of the plaintiffs was proper.

The above-discussed proposition in Booker is simply another way of stating that in order to justify submitting an affirmative defense issue to the jury, defendants who allege those affirmative defenses and who have the burden of proving them, must present more than a scintilla of evidence in support of each element of their defense.In the instant case, in order for the defendants to have survived plaintiff's motion for directed verdict, it was incumbent upon them to present more than a scintilla of evidence that the plaintiff was contributorily negligent.That they failed to do.The defendants produced no evidence that the plaintiff failed to keep a proper lookout or that he could have avoided the accident.Nor did the defendants produce any evidence tending to show that the accident did not occur exactly as the plaintiff alleged.Instead, defendants rely solely on evidence presented during the plaintiff's case-in-chief which they contend establishes contributory negligence on the part of the plaintiff.

The plaintiff's evidence tended to show that the plaintiff was approximately two or three car lengths away from defendant's van and was travelling at the 35 mile-per-hour speed limit when the van abruptly attempted to turn in front of him.The plaintiff testified that the accident occurred so quickly that he attempted to apply his brakes but was unable to do so in order to avoid the accident.The defendants contend that the evidence of the plaintiff's failure to apply his brakes immediately prior to the accident was sufficient to raise an issue of fact regarding contributory negligence on the part of the plaintiff.We disagree.

Evidence which merely raises conjecture on the issue of contributory negligence is insufficient to go to the jury.Tharpe v. Brewer, 7 N.C.App. 432, 172 S.E.2d 919(1970).In our opinion, the evidence of the plaintiff's failure to apply his brakes immediately prior to the accident, standing alone, did not create an issue of fact regarding contributory negligence which was sufficient to go to the jury.

Based upon plaintiff's evidence, which went uncontradicted by the defendants, we hold that reasonable minds could not have differed on the issue of plaintiff's contributory negligence.SeeSpears v. Service Distributing Co., 23 N.C.App. 445, 209 S.E.2d 382, cert. denied, 286 N.C. 337, 211 S.E.2d 214(1974).We conclude, therefore, that the trial judge properly granted the plaintiff's motion for a directed verdict.

II

The defendants next assign as error the trial judge's failure to instruct the jury on the plaintiff's duty to mitigate personal injury damages.The defendants contend that the plaintiff failed to keep up the exercise regimen prescribed by his orthopedic surgeon, and that such failure justified a jury instruction on the duty to mitigate personal injury damages.

To support their contention, the defendants rely upon the doctrine of unavoidable consequences which was defined by the North Carolina Supreme Court as follows:

The rule in North Carolina is that an injured plaintiff, whether his case be in tort or contract, must exercise reasonable care and diligence to avoid or lessen the consequences of the defendant's wrong.If he fails to do so, for any part of the loss incident to such failure, no recovery can be had.This rule is known as the doctrine of unavoidable consequences or the duty to minimize damages.Failure to minimize damages does not bar the remedy; it goes only to the amount of...