{
  "id": 8553869,
  "name": "CARL F. WALKER v. RELDA BARNETTE PLESS",
  "name_abbreviation": "Walker v. Pless",
  "decision_date": "1971-04-28",
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  "casebody": {
    "judges": [
      "Judges Parker and Vaughn concur."
    ],
    "parties": [
      "CARL F. WALKER v. RELDA BARNETTE PLESS"
    ],
    "opinions": [
      {
        "text": "MALLARD, Chief Judge.\nPlaintiff seeks to recover damages for personal injuries resulting from the alleged actionable negligence of defendant in the operation of her automobile.\nWhen considered in the light most favorable to him, plaintiff\u2019s evidence tended to show that on the night of 11 December 1968 he was walking northward towards Morganton on the shoulder of Highway #64 when he was struck from the rear by an automobile operated by the defendant. When he was struck he was 46 feet south of the center of Fletcher Street and three feet east of the paved portion of Highway #64. Plaintiff testified:\n\u201cI did not see or hear the car when it struck me. I saw one car going south which passed me before I was hit. The next thing I recall after being hit was coming to in the middle of Fletcher Street and Miss Pless was and Mr. S. L. Poole was there right after that.\u201d\nHis leg was broken, his head injured, and he remained in the hospital for five weeks.\nAt the conclusion of plaintiff\u2019s evidence, the court allowed defendant\u2019s motion for a directed verdict under G.S. 1A-1, Rule 50(a) on the grounds that plaintiff\u2019s evidence of negligence was insufficient to require or justify submission of the issues to the jury.\nThe plaintiff\u2019s only assignment of error is to the action of the court in allowing the motion of the defendant for a directed verdict.\nUpon the request of plaintiff, the trial judge, purportedly acting in accordance with G.S. 1A-1, Rule 52(a) (2), made separate \u201cFindings of Fact and Conclusions of Law\u201d and in another instrument entered a \u201cJudgment on Directed Verdict.\u201d In ruling on defendant\u2019s motion for a directed verdict in this case, it was not essential or appropriate that the judge make \u201cFindings of Fact and Conclusions of Law.\u201d Kelly v. Harvester Co., 278 N.C. 153, 179 S.E. 2d 396 (1971). The rule on considering a defendant\u2019s motion for a directed verdict made at the conclusion of a plaintiff\u2019s evidence is set forth by Chief Justice Bobbitt in Kelly v. Harvester Co., supra. See Sawyer v. Shackleford, 8 N.C. App. 631, 175 S.E. 2d 305 (1970), cert. denied, 277 N.C. 112, and also Musgrave v. Savings & Loan Assoc., 8 N.C. App. 385, 392, 174 S.E. 2d 820 (1970).\nWhen'all of the evidence in this case is considered in the light most favorable to plaintiff, giving him the benefit of every reasonable inference which may legitimately be drawn, resolving contradictions, conflicts and inconsistencies in his favor, we are of the opinion and so hold that the evidence was sufficient to require submission to the jury. See Rowe v. Fuquay, 252 N.C. 769, 114 S.E. 2d 631 (1960). The case of Rogers v. Green, 252 N.C. 214, 113 S.E. 2d 364 (1960), cited by appellee, is factually distinguishable.\nThe trial judge committed error in allowing defendant\u2019s motion for directed verdict.\nReversed.\nJudges Parker and Vaughn concur.",
        "type": "majority",
        "author": "MALLARD, Chief Judge."
      }
    ],
    "attorneys": [
      "Simpson & Martin by Dan R. Simpson for plaintiff appellant.",
      "Patton, Starnes & Thompson by Thomas M. Starnes .and Robert L. Thompson for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "CARL F. WALKER v. RELDA BARNETTE PLESS\nNo. 7125SC284\n(Filed 28 April 1971)\n1. Rules of Civil Procedure \u00a7 50\u2014 ruling on motion for directed verdict \u2014 findings of fact\nIn ruling on defendant\u2019s motion for a directed verdict, it was not essential or appropriate that the trial court make \u201cFindings of Fact and Conclusions of Law.\u201d\n2. Automobiles \u00a7 62 \u2014 pedestrian struck while walking on shoulder of road \u2014 sufficiency of evidence for jury\nPlaintiff\u2019s evidence was sufficient for the jury in an action to recover for personal injuries sustained when plaintiff was struck from the rear by defendant\u2019s automobile while walking on the shoulder of the road.\nAppeal by plaintiff from Beal, Special Superior Court Judge, December 1970 Session of Superior Court held in Burke County.\nSimpson & Martin by Dan R. Simpson for plaintiff appellant.\nPatton, Starnes & Thompson by Thomas M. Starnes .and Robert L. Thompson for defendant appellee."
  },
  "file_name": "0198-01",
  "first_page_order": 222,
  "last_page_order": 224
}