Odell v. Lipscomb

183 S.E.2d 299 (1971)

12 N.C. App. 318

Harvey Franklin ODELL v. Floney LIPSCOMB, Jr., and Jones Motor Company, Inc.

No. 7118SC545.

Court of Appeals of North Carolina.

September 15, 1971.

*301 Jordan, Wright, Nichols, Caffrey & Hill, by Karl N. Hill, Jr., and Younce, Wall & Suggs, by Adam Younce and Wade C. Euliss, Greensboro, for plaintiff appellant.

Smith, Moore, Smith, Schell & Hunter, and Richmond G. Bernhardt, Jr., Greensboro, for defendant appellees.

PARKER, Judge.

The court discharged the jury when it failed to reach a verdict. Within ten days thereafter the trial judge on his own motion directed a verdict. This procedure was authorized by Rule 50(b) (1) of the Rules of Civil Procedure, which contains the following:

"Not later than ten (10) days after entry of judgment or the discharge of the jury if a verdict was not returned, the judge on his own motion may, with or without further notice and hearing, grant, deny, or redeny a motion for directed verdict made at the close of all the evidence that was denied or for any reason was not granted."

While the action of the trial judge in directing a verdict was procedurally permissible, the question remains whether it was proper in this case.

The motion for a directed verdict under Rule 50(a) presents a question of law for the court, namely, whether the evidence was sufficient to entitle the plaintiff to have the jury pass on it. Kelly v. International Harvester Co., 278 N.C. 153, 179 S.E.2d 396. In deciding this question, the court should give no consideration to the fact that the jury may have failed to reach a verdict, but should consider only the evidence in the case. In so doing, the court should consider all of the evidence in the light most favorable to the plaintiff, and may grant the motion only if the evidence when so considered is insufficient, as a matter of law, to justify a verdict for the plaintiff. Kelly v. International Harvester Co., supra.

*302 In the present case there was a direct conflict in the evidence as to the location of plaintiff's vehicle on Highway 29 immediately before it started its turn. Defendants' evidence would show that plaintiff was driving in a northerly direction on Highway 29 in the outside, or right-hand, lane of travel for northbound traffic, and that he turned suddenly to his left and across the inside northbound lane directly in front of defendants' tractor-trailer. On the contrary, plaintiff's evidence would show that he was driving in the inside, or left-hand, northbound lane; that in apt time he turned on his left-hand turn signal and slowed to make a left turn into the crossover; and that as he was turning into the crossover, defendants' following vehicle struck him. While the physical evidence would tend to support defendants' version of what occurred, when all conflicts are resolved in plaintiff's favor and when the evidence is considered in the light most favorable to the plaintiff, as we are required to do when passing upon a ruling on a defendant's motion for a directed verdict, we are of the opinion that the evidence in this case was sufficient to entitle the plaintiff to have the jury pass on it.

There was some evidence that defendant driver was exceeding the posted speed limit. Furthermore, while the circumstances of each particular case govern the relative duties which vehicle drivers owe one another when they are traveling along a highway in the same direction, "[o]rdinarily the mere fact of a collision with a vehicle ahead furnishes some evidence that the following motorist was negligent as to speed, was following too closely, or failed to keep a proper lookout." Clark v. Scheld, 253 N.C. 732, 737, 117 S.E.2d 838, 842. In our opinion the evidence in the present case was sufficient to support a jury verdict finding actionable negligence on the part of the defendant driver.

We do not agree with defendants' contention that the directed verdict in their favor in plaintiff's action against them was required on the grounds that plaintiff's own evidence established his contributory negligence as a matter of law. In support of their contention, defendants point to plaintiff's testimony, given on cross-examination, that: "I did not actually see Mr. Lipscomb's truck before the accident occurred," and "[b]efore I started making a turn to the left the last time I recall looking in the mirror was somewhere around coming through the bridge, coming through the Deep River Bridge, and that was 3 to 4 or 500 feet roughly, I would say." (The investigating highway patrolman had previously testified that the intersection where the collision occurred was approximately 350 feet from the north end of the bridge.) Defendants contend this testimony of the plaintiff established that he was negligent in turning his vehicle from a direct line of traffic without first seeing that the movement could be made in safety in violation of G.S. § 20-154, citing Tallent v. Talbert, 249 N.C. 149, 105 S.E.2d 426, and Lowe v. Futrell, 271 N.C. 550, 157 S.E.2d 92. However, plaintiff also testified: "I was looking into my mirror as I was going into my left turn and that is when I spotted Mr. Lipscomb. I had looked into the mirror before I came to the bridge, at the time when I was coming through the bridge, and, of course, I was looking in it when I went into the turn. I was looking in it when I was going into my turn. My tractor was 3 to 4 feet off of Highway 29 and into the crossover, that was when I spotted Mr. Lipscomb."

In ruling on a motion for directed verdict the court must resolve any discrepancies in the evidence in favor of the party against whom the motion is made and must give that party the benefit of every legitimate inference which may be reasonably drawn from the evidence. When this is done in the present case, while the evidence would support a finding that plaintiff was negligent in turning his vehicle without first seeing that the movement could be made in safety, in our opinion *303 it does not compel that conclusion as a matter of law. The decisions cited by defendants are factually distinguishable. Plaintiff's case was for the jury, and the judgment appealed from, insofar as it directs a verdict in defendants' favor, is

Reversed.

BRITT and MORRIS, JJ., concur.