Clark v. Moore

309 S.E.2d 579 (1983)

Roy Lee CLARK v. William MOORE, Roger C. Moore Oil Co., Inc.

No. 826SC1306.

Court of Appeals of North Carolina.

December 20, 1983.

*580 Hux, Livermon & Armstrong by James S. Livermon, Jr., Enfield, for plaintiff-appellee.

Battle, Winslow, Scott & Wiley by Robert L. Spencer, Rocky Mount, for defendants-appellants.

EAGLES, Judge.

Defendants ask us to find that the trial judge erred in denying their motions for directed verdict and in denying their motion for judgment notwithstanding the verdict. Defendants contend that plaintiff's evidence as to defendant's negligence was not sufficient to submit the case to the jury and that plaintiff's own evidence showed contributory negligence as a matter of law. We do not agree with either contention.

Defendants' motion for directed verdict under Rule 50(a) of the North Carolina Rules of Civil Procedure and defendants' motion for judgment notwithstanding the verdict under Rule 50(b) present the question whether, as a matter of law, the evidence is sufficient to entitle plaintiff to have the jury pass on it. In ruling on defendants' Rule 50 motions, the evidence must be considered in the light most favorable to the plaintiff, and he is entitled to all reasonable inferences that can be drawn from it. The court should deny motions for *581 directed verdict and judgment notwithstanding the verdict when it finds any evidence more than a scintilla to support plaintiff's prima facie case in all its constituent elements. Hunt v. Montgomery Ward and Co., 49 N.C.App. 642, 272 S.E.2d 357 (1980).

Plaintiff presented ample evidence to show that defendants were negligent per se in leaving a disabled truck in a lane of traffic, unattended and without warning signals. Plaintiff presented uncontradicted testimony that defendants' truck was abandoned on the highway without warning signals. G.S. 20-161(c) provides:

The operator of any truck, trailer or semitrailer which is disabled upon any portion of the highway shall display warning signals not less than 200 feet in the front and rear of the vehicle. During daylight hours, such warning signals shall consist of red flags.

Violation of G.S. 20-161 is negligence per se, but whether such violation is the proximate cause of plaintiff's injuries is a question for the jury. Wilson v. Miller, 20 N.C.App. 156, 201 S.E.2d 55 (1973). Accordingly, defendants' motions for directed verdict and judgment notwithstanding the verdict were properly denied as to the negligence issue.

Defendants also contend that plaintiff's evidence showed contributory negligence by plaintiff as a matter of law. Directed verdict or judgment notwithstanding the verdict on the grounds of contributory negligence should be granted only when the evidence establishes plaintiff's negligence so clearly that no other reasonable inference can be drawn from the evidence. Daughtry v. Turnage, 295 N.C. 543, 246 S.E.2d 788 (1978); Burrow v. Jones, 51 N.C.App. 549, 277 S.E.2d 97 (1981). While contributory negligence on the part of plaintiff could be inferred in that he continued driving with the blinding sun in his face, that is not the only reasonable inference to be drawn from the evidence. The jury could, and apparently did, infer that plaintiff was exercising the ordinary care required of a reasonably prudent person who finds himself driving with blinding sunlight in his face. Because plaintiff was entitled to all reasonable inferences in his favor that could be drawn from the evidence, defendants' Rule 50 motions as to the issue of contributory negligence were also properly denied.

Affirmed.

WEBB and PHILLIPS, JJ., concur.