Opinion
No. 9327SC331
Filed 15 March 1994
Automobiles and Other Vehicles 528 (NCI4th) — defendant crossing center line — road slippery from rain — submission of negligence issue to jury proper In an action to recover for injuries sustained in an automobile accident, the evidence did not show negligence per se by defendant but presented an issue of negligence for the jury where it tended to show that defendant crossed the center line and struck plaintiffs in their lane of travel, but there was also evidence that defendant was driving under the speed limit, was driving a car which was in good repair with good tire tread, and crossed the center line because of roads made slippery by rain rather than because of his own negligence. N.C.G.S. § 20-146.
Am Jur 2d, Automobiles and Highway Traffic 769.
Appeal by plaintiffs from judgment entered 22 October 1992 and order entered 15 December 1992 by Judge Zoro N. Guice in Gaston County Superior Court. Heard in the Court of Appeals 14 January 1994.
James, McElroy Diehl, P.A., by G. Russell Kornegay, III, and Richard B. Fennell, for plaintiff appellant, Cynthia Rayfield Tate; and Tim L. Harris Associates, by Jerry N. Ragan, for plaintiff appellant, Carol T. Taylor.
Stott, Hollowell, Palmer Windham, by Martha Raymond Holmes, for defendant appellee.
Judge ORR dissenting.
Plaintiffs appeal the trial court's judgment reflecting a jury verdict finding that plaintiffs' injuries resulting from an automobile collision were not caused by defendant's negligence. Plaintiffs additionally appeal the denial of their motions for judgment notwithstanding the verdict and for a new trial. We find no error.
Plaintiffs filed this cause of action on 1 July 1991 to recover damages for injuries they received when the automobile in which they were riding was struck by defendant's vehicle. The evidence presented at trial tends to show that, on 11 October 1990, at approximately 1:15 p.m., Cynthia Tate, and her mother, Carol Taylor, were driving south on Helton Road in Gaston County, North Carolina. Defendant was also driving on Helton Road, heading in a northerly direction. As plaintiffs and defendant approached a curve in opposite directions, Ms. Tate noticed that defendant was across the yellow line and coming toward her in her lane of travel. Ms. Taylor also testified at trial that she observed defendant's automobile over the double yellow line. Ms. Tate attempted to steer her car out of the way, but she was unable to avoid a collision. Defendant's vehicle struck Tate's car, damaging both the front and side of the passenger's side, and the front of the driver's side of the automobile.
Trooper Kersey, the investigating officer at the scene, measured skid marks from defendant's vehicle which began twenty-six feet from the point of impact. The skid marks crossed the center line prior to the point of impact. Trooper Kersey noted the road was in good condition, but that it had been raining on the day of the accident. Defendant told Trooper Kersey that "slick roads" was a cause of the accident, and that he had been travelling below the posted speed limit of 55 miles per hour.
At the close of the evidence, both plaintiffs and defendant moved for a directed verdict. The trial court denied defendant's motion and reserved ruling on plaintiffs' motion. The issue of whether plaintiffs were injured by defendant's negligence was sent to the jury. The jury returned a verdict finding that plaintiffs were not injured by the defendant's negligence. The trial court thereupon entered judgment based on the verdict and denied all post trial motions.
Plaintiffs argue the trial court should have directed a verdict in their favor as to defendant's negligence, or granted their motion for a judgment notwithstanding the verdict (JNOV), since defendant could not demonstrate that his violation of N.C. Gen. Stat. § 20-146, requiring a driver to drive on the right side of the road, was not negligence per se. Defendant contends the plaintiffs' own evidence was sufficient for a jury to find that he was not liable, because Trooper Kersey presented evidence tending to show the defendant was on the opposite side of the road from a cause other than his own negligence. We agree with defendant and find no error.
A directed verdict motion pursuant to N.C.R. Civ. P. 50 tests whether the evidence is sufficient to submit the case to the jury in support of a verdict for the nonmoving party. Dunbar v. City of Lumberton, 105 N.C. App. 701, 703, 414 S.E.2d 387, 388 (1992). A motion for judgment notwithstanding the verdict (JNOV) under Rule 50(b) of the North Carolina Rules of Civil Procedure is essentially a renewal of a motion for a directed verdict. Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 368-69, 329 S.E.2d 333, 337 (1985). The test governing the sufficiency of the evidence on a motion for JNOV is the same as the test used on motions for directed verdicts. Northern Nat'l Life Ins. Co. v. Lacy J. Miller Mach. Co., 311 N.C. 62, 69, 316 S.E.2d 256, 261 (1984). Therefore, if a directed verdict should have been granted, JNOV should be granted. Bryant, 313 N.C. at 369, 329 S.E.2d at 337. As stated previously, we must determine whether the evidence, when viewed in the light most favorable to the nonmovant, giving the nonmovant the benefit of every reasonable inference, was sufficient to go to the jury. Id. at 369, 329 S.E.2d at 337-38.
Here, the evidence presented at trial did not establish conclusively that defendant was negligent as a matter of law. It is undisputed the defendant violated N.C. Gen. Stat. § 20-146 (1993), which provides that "[u]pon all [highways] of sufficient width a vehicle shall be driven upon the right half of the highway . . . ." Where a plaintiff puts on evidence tending to show the collision occurred when defendant was driving left of center of the highway, the burden shifts to defendant to produce evidence that he was on the wrong side of the road from a cause other than his own negligence. Otherwise, defendant's violation of N.C. Gen. Stat. § 20-146 amounts to negligence per se. See Nationwide Mut. Ins. Co. v. Chantos, 298 N.C. 246, 250, 258 S.E.2d 334, 337 (1979). In Chantos, the North Carolina Supreme Court stated:
While defendant in the instant case stipulated that the car he was operating crossed over the median into the southbound lane and collided with [plaintiff], he also offered evidence tending to show that he was in the southbound lane from a cause other than his own negligence. Therefore, a jury question was presented and the trial court properly denied plaintiff's motion for a directed verdict on the first issue.
Id. at 250-51, 258 S.E.2d at 337.
In this case, defendant presented evidence tending to show he crossed into plaintiffs' lane of travel from a cause other than his own negligence. Trooper Kersey testified that defendant was travelling under the speed limit and was operating a vehicle in good condition having tires with good tread. The evidence also demonstrated the road was slippery due to rainy weather. Thus, there was evidence before the court tending to show that defendant crossed the double yellow line due to a cause other than his own negligence. Accordingly, the issue of whether a cause other than defendant's negligence forced him into the other lane was a proper issue for the jury's determination. See Anderson v. Webb, 267 N.C. 745, 148 S.E.2d 846 (1966). Because reasonable minds could have differed on the question of what caused defendant to move into the other lane, the jury was in the best position to reconcile the evidence and to make such a determination. Accordingly, we find the trial court did not err in denying plaintiffs' motion for a directed verdict and for JNOV.
Plaintiffs further contend the trial court erred in failing to grant their motion for a new trial. Our standard of reviewing a motion for a new trial pursuant to N.C.R. Civ. P. 59 is an abuse of discretion standard. Bryant, 313 N.C. at 380-81, 329 S.E.2d at 343-44. We find no manifest abuse of discretion by the trial court in the present case; plaintiffs' assignment of error is thus overruled.
Finally, plaintiffs argue the trial court erred in granting defendant's motion in limine which excluded evidence of a citation received by defendant following the accident. We have reviewed the record and find no evidence as to any citation received by defendant or disposition of a traffic citation. This assignment of error is overruled.
No error.
Judge GREENE concurs.
Judge ORR dissents.