Williams v. Odell, 8812SC209

• Decision Date: 19 July 1988
• Docket Number: No. 8812SC209,8812SC209
• Citation: 90 N.C.App. 699,370 S.E.2d 62
• Court: North Carolina Court of Appeals
• Parties: Clarence WILLIAMS, Administrator of the Estate of Delphine Adams Warren v. Charles Jeffrey ODELL.

Page 62

370 S.E.2d 62

90 N.C.App. 699

Clarence WILLIAMS, Administrator of the Estate of Delphine Adams Warren v. Charles Jeffrey ODELL.

No. 8812SC209.

Court of Appeals of North Carolina.

July 19, 1988.

Downing, David, Maxwell & Melvin by Stephen R. Melvin, Fayetteville, for plaintiff-appellant.

Singleton, Murray & Craven by Rudolph G. Singleton, Jr., and Richard T. Craven, Fayetteville, for defendant-appellee.

SMITH, Judge.

Plaintiff's sole assignment of error before this court is that the trial court erred in granting defendant's motion for judgment in accordance with the motions for a directed verdict pursuant to G.S. 1A-1, Rule 50(b). First, plaintiff contends that the evidence presented genuine issues of material fact concerning Ms. Warren's contributory negligence which should have been determined by a jury. Second, he contends that in the event Ms. Warren was contributorily negligent as a matter of law, there are also issues of material fact relating to the doctrine of last clear chance which require a jury determination. Plaintiff would be entitled to recover for the wrongful death of his intestate only if Ms. Warren would have been entitled to recover had she lived. G.S. 28A-18-2. We hold that the evidence was sufficient to establish that Ms. Warren was contributorily negligent as a matter of law and that the doctrine of last clear chance does not apply. Since Ms. Warren could not have recovered damages for her injuries had she lived, plaintiff may not recover. The judgment of the trial court is affirmed.

A motion for judgment in accordance with a motion for a directed verdict made pursuant to G.S. 1A-1, Rule 50(b) and a motion for a directed verdict made pursuant to G.S. 1A-1, Rule 50(a) present essentially the same question: "whether the evidence, taken as true and considered in the light most favorable to the [plaintiff], is sufficient for submission to the jury." McDaniel v. Bass-Smith Funeral Home, Inc., 80 N.C.App. 629, 632, 343 S.E.2d 228, 230 (1986). See Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973); Snellings v. Roberts, 12 N.C. App. 476, 183 S.E.2d 872, cert. denied, 279 N.C. 727, 184 S.E.2d 886 (1971). Rule 50(b), in pertinent part, provides:

Whenever a motion for directed verdict made at the close of all the evidence is denied or for any reason is not granted, the submission of the action to the jury shall be deemed to be subject to a later determination of the legal questions raised by the motion.... [I]f a verdict was not returned [a party who has moved for a directed verdict], within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict.... [T]he motion shall be granted if it appears that the motion for directed verdict could properly have been granted.

With regard to the issue of contributory negligence, a directed verdict may be granted only if the evidence is insufficient to justify a verdict for plaintiff as a matter of law. Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974). In an action for personal injury, the motion should be granted in favor of the defendant "if the jury could have drawn no conclusion from the evidence but that ... the contributory negligence of [plaintiff's intestate] was a proximate cause of the [injury]." Shay v. Nixon, 45 N.C. App. 108, 109-10, 262 S.E.2d 294, 296 (1980). In the case sub judice, defendant was entitled to a directed verdict or judgment in accordance with the motion for directed verdict on the issue of contributory negligence if the evidence established Ms. Warren's contributory negligence as a matter of law.

It is well established that a claim is barred by the doctrine of contributory negligence if the injured party fails to exercise ordinary care for her own safety and such failure contributes to the injury. Allen v. Pullen, 82 N.C.App. 61, 345 S.E.2d 469 (1986), disc. rev. denied, 318 N.C. 691, 351 S.E.2d 738 (1987). The existence of contributory negligence does not depend on the injured party's subjective appreciation of the danger; the standard of ordinary care is an objective one--" 'the care an ordinarily prudent person would exercise under the same or similar circumstances to avoid injury.' " Smith v. Fiber Control Corp., 300 N.C. 669, 673, 268 S.E.2d 504, 507 (1980), quoting Clark v. Roberts, 263 N.C. 336, 343, 139 S.E.2d 593, 597 (1965). Where a motion for a directed verdict is grounded upon contributory negligence as a matter of law "the question before the trial court is whether 'the evidence taken in the light most favorable to plaintiff establishes [its intestate's] negligence so clearly that no other reasonable inference or conclusion may be drawn.' " Norwood v. Sherwin-Williams Co., 303 N.C. 462, 468-69, 279 S.E.2d 559, 563 (1981) (citations omitted).

The evidence viewed in the light most favorable to plaintiff allows no other reasonable inference except that Ms. Warren failed to exercise such care for her own safety as a reasonably careful and prudent person would have used under similar circumstances. The evidence tended to show that on 17 March 1986, at approximately 7:20 p.m., Ms. Warren was involved in a minor automobile accident with George Allen Hargrove on an entrance ramp to the All American Expressway in Cumberland County. Mr. Hargrove moved his car to the right shoulder of the highway and activated his car's emergency flashers. Ms. Warren drove ahead one car length, parked her car on the main travelled portion of the ramp and exited the vehicle. She did not activate the car's emergency flashers. She remained standing on the entrance ramp eight to ten minutes waiting for a police officer to arrive. According to the testimony, she was leaning against the rear of her automobile with her arms crossed, facing oncoming traffic. While she was waiting, between 10 and 15 cars approached and some drivers applied their brakes to avoid striking her or her car. At least three of these cars nearly hit her vehicle and two of the three skidded to avoid a collision. Defendant entered the entrance ramp. The entrance ramp was curved to the right with a downward slope. As he accelerated, he looked over his left shoulder two or three times to observe highway traffic. Defendant did not see Mr. Hargrove's car nor Hargrove waving his flashlight to alert motorists entering the ramp. When defendant was about 100 feet away from Ms. Warren, he saw her and applied his brakes. Defendant's car skidded and left 57 feet of tire impression marks. The front of defendant's car struck the rear of Ms. Warren's car and pinned her between the two vehicles. It is clear from the evidence that by voluntarily placing herself on the main travelled portion of the entrance ramp and failing to exercise the care of an ordinarily prudent person, Ms. Warren was contributorily negligent as a matter of law. Clemons v. Williams, 61 N.C.App. 540, 300 S.E.2d 873 (1983).

Next we address plaintiff's contention that defendant had the last clear chance to avoid the collision. The doctrine of last clear chance would allow plaintiff to recover despite Ms. Warren's contributory negligence if defendant had the last clear chance to avoid Ms. Warren's injuries by exercising reasonable care and prudence but failed to do so....