{ "id": 8527889, "name": "JAMES OTIS SNEAD, Plaintiff v. JIMMY JUNIOR HOLLOMAN and FLOWERS BAKING COMPANY OF HIGH POINT, INC., Defendants", "name_abbreviation": "Snead v. Holloman", "decision_date": "1991-02-05", "docket_number": "No. 9011SC366", "first_page": "462", "last_page": "468", "citations": [ { "type": "official", "cite": "101 N.C. App. 462" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "19 S.E.2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "pin_cites": [ { "page": "872" } ], "opinion_index": 0 }, { "cite": "221 N.C. 218", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627150 ], "year": 1942, "pin_cites": [ { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/nc/221/0218-01" ] }, { "cite": "332 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "parenthetical": "citations omitted" }, { "page": "503" } ], "opinion_index": 0 }, { "cite": "314 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694848, 4685635, 4691143, 4696177, 4697201 ], "year": 1985, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0117-03", "/nc/314/0117-02", "/nc/314/0117-04", "/nc/314/0117-05", "/nc/314/0117-01" ] }, { "cite": "305 S.E.2d 64", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "65" }, { "page": "65" } ], "opinion_index": 0 }, { "cite": "63 N.C. App. 501", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525554 ], "year": 1983, "pin_cites": [ { "page": "502-3" } ], "opinion_index": 0, "case_paths": [ "/nc-app/63/0501-01" ] }, { "cite": "160 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "73-4", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "273 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575009 ], "year": 1968, "pin_cites": [ { "page": "239", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0228-01" ] }, { "cite": "211 S.E.2d 214", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "286 N.C. 337", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565931, 8565965, 8565906, 8566007, 8566042 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/286/0337-02", "/nc/286/0337-03", "/nc/286/0337-01", "/nc/286/0337-04", "/nc/286/0337-05" ] }, { "cite": "209 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "23 N.C. App. 445", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551077 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/23/0445-01" ] }, { "cite": "172 S.E.2d 919", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "7 N.C. App. 432", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550671 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/7/0432-01" ] }, { "cite": "180 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560580 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0390-01" ] }, { "cite": "212 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "parenthetical": "Contributory negligence is an affirmative defense, and the burden of proof on the issue rests on defendant" } ], "opinion_index": 0 }, { "cite": "286 N.C. 525", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569263 ], "year": 1975, "pin_cites": [ { "parenthetical": "Contributory negligence is an affirmative defense, and the burden of proof on the issue rests on defendant" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0525-01" ] }, { "cite": "204 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "parenthetical": "On an affirmative defense, the burden of proof lies with the defendant" } ], "opinion_index": 0 }, { "cite": "21 N.C. App. 326", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555853 ], "year": 1974, "pin_cites": [ { "parenthetical": "On an affirmative defense, the burden of proof lies with the defendant" } ], "opinion_index": 0, "case_paths": [ "/nc-app/21/0326-01" ] }, { "cite": "240 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 146", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571110 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0146-01" ] }, { "cite": "234 S.E.2d 46", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "56" }, { "page": "56" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547611 ], "year": 1977, "pin_cites": [ { "page": "15" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0001-01" ] }, { "cite": "339 S.E.2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "36" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 221", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520033 ], "year": 1986, "pin_cites": [ { "page": "226" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0221-01" ] }, { "cite": "231 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "680" } ], "opinion_index": 0 }, { "cite": "291 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558910 ], "year": 1977, "pin_cites": [ { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0666-01" ] }, { "cite": "298 S.E.2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "194" } ], "opinion_index": 0 }, { "cite": "60 N.C. App. 145", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519692 ], "year": 1982, "pin_cites": [ { "page": "146" } ], "opinion_index": 0, "case_paths": [ "/nc-app/60/0145-01" ] } ], "analysis": { "cardinality": 703, "char_count": 15220, "ocr_confidence": 0.77, "pagerank": { "raw": 4.5599351034293486e-07, "percentile": 0.9247471570736363 }, "sha256": "0aef620a350dfd235a4d24ce3d37c0d6af315fe742ec078b25708c9f4332d67e", "simhash": "1:3364442658a5b154", "word_count": 2482 }, "last_updated": "2023-07-14T19:54:53.681770+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge LEWIS concurs.", "Chief Judge HEDRICK concurs in the result." ], "parties": [ "JAMES OTIS SNEAD, Plaintiff v. JIMMY JUNIOR HOLLOMAN and FLOWERS BAKING COMPANY OF HIGH POINT, INC., Defendants" ], "opinions": [ { "text": "WYNN, Judge.\nI\nDefendants first assign as error the trial judge\u2019s granting of the plaintiff\u2019s 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.\nThe 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 198, 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\u2019s 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. See Booker v. Everhart, 33 N.C. App. 1, 15, 234 S.E.2d 46, 56 (1977), rev\u2019d 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).\nThis 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\u2019 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.\nIn 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\u2019 favor. It was the defendants\u2019 contention that by denying material allegations of the plaintiffs\u2019 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).\nWhile adhering to the ruling in Cutts, the Booker court disagreed with the defendants\u2019 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 at 14-15, 234 S.E.2d at 56. The court went on to hold that the defendants\u2019 evidence was insufficient to create an issue of fact and, therefore, the entry of the directed verdict in favor of the plaintiffs was proper.\nThe 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\u2019s 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\u2019s case-in-chief which they contend establishes contributory negligence on the part of the plaintiff.\nThe plaintiff\u2019s evidence tended to show that the plaintiff was approximately two or three car lengths away from defendant\u2019s 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\u2019s 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.\nEvidence 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\u2019s 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.\nBased upon plaintiff\u2019s evidence, which went uncontradicted by the defendants, we hold that reasonable minds could not have differed on the issue of plaintiff\u2019s contributory negligence. See Spears 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\u2019s motion for a directed verdict.\nII\nThe defendants next assign as error the trial judge\u2019s failure to instruct the jury on the plaintiff\u2019s 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.\nTo support their contention, the defendants rely upon the doctrine of unavoidable consequences which was defined by the North Carolina Supreme Court as follows:\nThe 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\u2019s 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 damages recoverable.\nMiller v. Miller, 273 N.C. 228, 239, 160 S.E.2d 65, 73-4 (1968) (citations omitted).\nThis court has also addressed this issue by stating that \u201c[d]amages will not be reduced merely because the injured party fails to follow the medical advice given. All he must do is to act reasonably concerning the advice which he receives. Since the test is one of reasonableness, ... it is a jury question except in the clearest of cases.\u201d Radford v. Norris, 63 N.C. App. 501, 502-3, 305 S.E.2d 64, 65 (1983), disc. review denied, 314 N.C. 117, 332 S.E.2d 483 (1985) (citations omitted).\nIn Radford, the issue was whether the trial judge erred in failing to instruct the jury on the plaintiff\u2019s duty to minimize damages. There, the plaintiff, who was injured in a collision with the defendant, consulted an orthopedic surgeon who prescribed a program of back exercises as part of the treatment for plaintiff\u2019s back injury. The plaintiff testified that he attempted to do the exercises in the beginning, but stopped doing them because they were too painful. The orthopedic surgeon testified that the back exercises were routine and were designed to work out stiffness and pain in the plaintiff\u2019s back. When the plaintiff advised the doctor that he had discontinued the exercises, the doctor repeatedly advised the plaintiff to resume the exercises. The doctor further testified that although he could not say with a reasonable degree of medical certainty that the exercises would have cured the plaintiff\u2019s back pain had they been performed regularly, he knew the exercises would make the pain better. Nonetheless, the plaintiff did not resume the regimen.\nThe Radford court held that the above evidence tended to show that the plaintiff\u2019s regular and continued performance of the exercises would have alleviated the pain and, thus, the pain was a consequence that may have been avoided. Id. at 503, 305 S.E.2d at 65. Since the defendant in Radford properly requested an instruction on avoidable consequences which was improperly denied, the Radford court remanded the case for a jury determination of the reasonableness of plaintiff\u2019s failure to follow his doctor\u2019s advice.\nWe are unable to make a meaningful distinction between the facts in Radford and those present here. In the instant case, the plaintiff\u2019s orthopedic surgeon, Dr. Tejpal Singh Dhillon, prescribed a certain exercise regimen which the plaintiff, for some unexplained reason, discontinued performing after one month. In his deposition, which was read into evidence at trial, Dr. Dhillon testified that the exercises were designed to \u201crelieve the [plaintiff\u2019s back] spasm and [to] make some more room for the nerves to get through to ease the irritation of the nerves.\u201d He further testified that he continued to prescribe the exercises for the plaintiff on at least two occasions after the plaintiff ceased performing them.\n\u201cWhen a party tenders a written request for a specific instruction which is correct and supported by the evidence, the failure of the court to give the instruction, at least in substance, is reversible error.\u201d Bass v. Hocutt, 221 N.C. 218, 220, 19 S.E.2d 871, 872 (1942). Since the defendants properly requested that the jury be instructed on the plaintiff\u2019s duty to minimize damages, we conclude that the trial judge\u2019s failure to so instruct the jury was reversible error under the holding in Radford. Accordingly, we remand this case for a new trial on the issue of damages.\nIll\nSince the defendants\u2019 remaining assignments of error also relate to the issue of damages, we do not consider them as they may not recur on retrial.\nIV\nFor the reasons set forth above, we find no error in the entry of the directed verdict in favor of the plaintiff. However, this case is remanded for a new trial on the issue of damages.\nNew trial on the issue of damages only.\nJudge LEWIS concurs.\nChief Judge HEDRICK concurs in the result.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Lucas, Bryant & Denning, P.A., by Robert W. Bryant, for plaintiff-appellee.", "Burns, Day & Presnell, P.A., by Daniel C. Higgins, for defendants-appellants." ], "corrections": "", "head_matter": "JAMES OTIS SNEAD, Plaintiff v. JIMMY JUNIOR HOLLOMAN and FLOWERS BAKING COMPANY OF HIGH POINT, INC., Defendants\nNo. 9011SC366\n(Filed 5 February 1991)\n1. Automobiles and Other Vehicles \u00a7 638 (NCI4th)\u2014 automobile accident \u2014defendant turning in front of plaintiff \u2014 contributory negligence \u2014 directed verdict for plaintiff\nThe trial court correctly granted a directed verdict for plaintiff on defendants\u2019 contention of contributory negligence in an action arising from an automobile accident in which defendant turned in front of plaintiff where defendants produced no evidence that plaintiff failed to keep a proper lookout or that he could have avoided the accident but relied on plaintiff\u2019s testimony that the accident occurred so quickly that he was unable to apply his brakes. The evidence of plaintiff\u2019s 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.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 1100,1101.\n2. Damages \u00a7 9 (NCI3d)\u2014 automobile accident \u2014 failure to perform orthopedic exercises \u2014 instruction on duty to mitigate\nThe trial court erred in an action arising from an automobile accident by failing to instruct the jury on plaintiff\u2019s duty to mitigate personal injury damages where plaintiff\u2019s orthopedic surgeon prescribed a certain exercise regimen which the plaintiff discontinued after one month and which the doctor continued to prescribe. Since the defendants properly requested that the jury be instructed on plaintiff\u2019s duty to minimize damages, the trial court\u2019s failure to so instruct the jury was reversible error.\nAm Jur 2d, Damages \u00a7\u00a7 533, 996.\nChief Judge HEDRICK concurs in the result.\nAPPEAL by defendants from judgment entered 11 December 1989 in JOHNSTON County Superior Court by Judge Wiley F. Bowen. Heard in the Court of Appeals 3 December 1990.\nOn 19 February 1988, plaintiff was injured when the car he was driving collided with a 26-foot delivery van being driven by defendant, Jimmy Junior Holloman. At the time of the accident, Mr. Holloman was within the course and scope of his employment with defendant, Flowers Baking Company of High Point. Plaintiff later filed an action against defendants, alleging that Mr. Holloman negligently operated the van causing injury to the plaintiff\u2019s person and property, and that such negligence was attributable to Flowers Baking Company. Defendants answered denying negligence and pleaded, in the alternative and in bar of plaintiff\u2019s claim, contributory negligence.\nPlaintiff\u2019s evidence at trial tended to show that on the morning of 19 February 1988, plaintiff was travelling in a northerly direction on Highway 50 in Garner, North Carolina, when he noticed a bread delivery van which was facing south in the center turn-lane of Highway 50. Plaintiff testified that he was alert, that he was aware of the other traffic in the area, and that he knew the van intended to turn because its left-turn indicator was flashing. He further testified that because two or three cars were ahead of him, and because he was so close to the van, he did not expect the van to turn until he had passed. Nonetheless, according to plaintiff\u2019s testimony, the van suddenly turned in front of his vehicle. The plaintiff testified that he attempted to swerve and to apply the brakes of his car to avoid hitting the van but before he could do so, the two vehicles collided.\nFinally, plaintiff testified that the speed limit in the area was 35 miles per hour, and that he was not travelling in excess of the speed limit at the time of the collision.\nFollowing plaintiff\u2019s presentation of evidence, the defendants declined to present any evidence. Plaintiff then moved for a directed verdict on the issue of contributory negligence. The trial court granted the plaintiff\u2019s motion and, thereafter, submitted issues on defendants\u2019 negligence and damages to the jury. The jury returned a verdict in favor of plaintiff and defendants now appeal.\nLucas, Bryant & Denning, P.A., by Robert W. Bryant, for plaintiff-appellee.\nBurns, Day & Presnell, P.A., by Daniel C. Higgins, for defendants-appellants." }, "file_name": "0462-01", "first_page_order": 490, "last_page_order": 496 }