{ "id": 11240919, "name": "ROBBIE McCRAE WILBURN, Plaintiff v. TED WALLACE HONEYCUTT, Defendant", "name_abbreviation": "Wilburn v. Honeycutt", "decision_date": "1999-10-19", "docket_number": "No. COA98-1362", "first_page": "373", "last_page": "377", "citations": [ { "type": "official", "cite": "135 N.C. App. 373" } ], "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": "392 S.E.2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307041, 5309644, 5305421, 5304726, 5309271 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0483-03", "/nc/326/0483-05", "/nc/326/0483-04", "/nc/326/0483-02", "/nc/326/0483-01" ] }, { "cite": "386 S.E.2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "448" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 578", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523654 ], "year": 1990, "pin_cites": [ { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0578-01" ] }, { "cite": "249 S.E.2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "860" }, { "page": "860" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 183", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8553782 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "760" }, { "page": "760" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0759-01" ] }, { "cite": "221 S.E.2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "510" } ], "opinion_index": 0 }, { "cite": "289 N.C. 246", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567809 ], "year": 1976, "pin_cites": [ { "page": "251" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0246-01" ] }, { "cite": "495 S.E.2d 149", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "151" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 282", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11653822 ], "year": 1998, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0282-01" ] }, { "cite": "517 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "206" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 260", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11143907 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/134/0260-01" ] } ], "analysis": { "cardinality": 486, "char_count": 8690, "ocr_confidence": 0.779, "pagerank": { "raw": 8.393184908268826e-08, "percentile": 0.48233043702547906 }, "sha256": "dded6f5eb2f80d720dfc519e7a20ad4f3db238d6601d59249d8cba3946a4a5ff", "simhash": "1:e0c2dc0c36150c7e", "word_count": 1419 }, "last_updated": "2023-07-14T18:51:33.981101+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and HUNTER concur." ], "parties": [ "ROBBIE McCRAE WILBURN, Plaintiff v. TED WALLACE HONEYCUTT, Defendant" ], "opinions": [ { "text": "LEWIS, Judge.\nThis appeal arises out of an accident that occurred between plaintiff and defendant on the morning of 15 January 1996 in Harnett County, North Carolina. On 4 March 1996 plaintiff filed this action alleging that defendant operated his vehicle negligently as well as willfully and wantonly and asking to recover both compensatory and punitive damages. Defendant answered and asserted the defense of contributory negligence.\nAt the close of plaintiffs evidence, defendant moved for directed verdict on the issues of contributory negligence and willful and wanton conduct. The trial court granted the motion without specifying on which ground and entered judgment for defendant. After a careful review of the record and briefs, we reverse.\nAt trial, the evidence tended to show that plaintiff and nine others were riding horses down a long, straight, single-lane dirt road. Plaintiff, who had six to seven years of experience riding horses, rode last in the group, about 40 yards behind the first rider. Defendant was driving a truck meeting the group along the same road. When defendant\u2019s truck reached plaintiff, having passed the others, the side mirror and rear bumper struck the horse, causing the horse and rider to fall. Defendant did not stop, but drove one-half mile down the road and parked his truck. Plaintiff and others from the group followed to speak with defendant about the accident.\nOn appeal, plaintiff argues that the trial court erred in granting a directed verdict for defendant. In reviewing the trial court\u2019s ruling on appeal, the scope of review is limited to those grounds argued by the moving party before the trial court. Winston v. Brodie, 134 N.C. App. 260, -, 517 S.E.2d 203, 206 (1999). Accordingly, we will address the trial court\u2019s grant of directed verdict on the issues of contributory negligence and willful and wanton conduct.\nOn a defendant\u2019s motion for directed verdict, the trial court must determine whether the evidence, when considered in the light most favorable to the plaintiff, is sufficient to take the case to the jury. N.C. Gen. Stat. \u00a7 1A-1, Rule 50(a) (1990); Smith v. Wal-Mart Stores, 128 N.C. App. 282, 285, 495 S.E.2d 149, 151 (1998). The jury must resolve any contradictions or discrepancies in the evidence, even when arising from plaintiff\u2019s evidence. Clark v. Bodycombe, 289 N.C. 246, 251, 221 S.E.2d 506, 510 (1976).\nFor issues of contributory negligence, a motion for directed verdict is appropriate when the \u201cplaintiff\u2019s evidence, considered in the light most favorable to him, together with inferences favorable to him that may be reasonably drawn therefrom, so clearly establishes the defense of contributory negligence that no other conclusion can reasonably be drawn.\u201d Peeler v. Railway Co., 32 N.C. App. 759, 760, 233 S.E.2d 685, 686 (1977). The issue of contributory negligence is ordinarily a question for the jury rather than an issue decided as a matter of law. Champs Convenience Stores v. United Chemical Co., 329 N.C. 446, 456, 406 S.E.2d 856, 862 (1991).\nThe defendant argues that the directed verdict should be sustained on the issue of contributory negligence because the evidence supports an inference that plaintiff had the opportunity to move off of the road to avoid the accident. Although there is evidence that defendant\u2019s truck was at least 150 yards away when plaintiff first saw him, plaintiff testified that he did not have time to move out of defendant\u2019s way; at almost the same moment plaintiff began to clear the roadway, he heard a motor accelerate and saw defendant\u2019s truck coming at him. Taken in the light most favorable to plaintiff and resolving all inconsistencies in his favor, the evidence of contributory negligence is not so clearly established that no other reasonable inference can be drawn. Peeler, 32 N.C. App. at 760, 233 S.E.2d at 686. We conclude, therefore, the trial court improperly granted defendant\u2019s motion for directed verdict as to the issue of contributory negligence.\nPlaintiff next argues that the trial court erred in granting defendant\u2019s motion for directed verdict on the issue of willful and wanton conduct. The record must be reviewed to determine whether there is sufficient evidence which, considered in the light most favorable to the plaintiff, would establish facts sufficient to constitute willful and wanton negligence. If the facts are such that reasonable persons could differ as to whether the evidence amounts to willful or wanton conduct, the question is properly preserved for the jury. Siders v. Gibbs, 39 N.C. App. 183, 186, 249 S.E.2d 858, 860 (1978).\nAn act is willful when there is a deliberate failure to discharge a duty imposed by law for the safety of others. Wantonness indicates a reckless and heedless disregard for the rights and safety of others. Marsh v. Trotman, 96 N.C. App. 578, 580, 386 S.E.2d 447, 448, disc. review denied, 326 N.C. 483, 392 S.E.2d 91 (1990). Plaintiff testified that after the accident, plaintiff and defendant had the following conversation:\nA. I said, do you care about horses. He said, not particularly. I said, do you know you struck me and my horse back there. He said, yes. This is my damn land and I\u2019ll do any damn thing I want to. That\u2019s a quote. And I\u2019m just, like, okay. And I don\u2019t know why I asked this either, I said, does that include horses and kids. He said, yeah, I\u2019ll do what it takes. And I\u2019m just really \u2014 I\u2019m floored at this point that this man is telling me he hit me and he knows it. And he would do it again.\n(Tr. at 16). Plaintiff also offered testimony from another rider who saw the accident and witnessed the conversation between plaintiff and defendant as follows:\nA. Well, [plaintiff] asked him didn\u2019t he see the children and all of us on horses. And he said, yes.\nQ. What did he say next?\nA. And [plaintiff] asked him, well, why didn\u2019t you slow down for us. He said because this is my land and I do wh\u00e1t I want on my land.\n(Tr. at 76-77).\nViewed in the light most favorable to plaintiff and resolving all discrepancies in plaintiff\u2019s favor, the evidence tends to show that defendant was driving on a long, straight road with no obstructions, that he saw plaintiff and his horse, and either intentionally or with reckless indifference to the consequences did not slow down and willfully ran into them. Furthermore, the testimony that defendant drove on without stopping, knowing he hit plaintiff and his horse tends to show that defendant heedlessly disregarded plaintiff\u2019s safety. Plaintiff also testified that the defendant proceeded at a reasonable speed and did not deviate from his path or veer toward the riders. Since the facts are such that reasonable persons could differ as to whether the evidence amounts to willful or wanton conduct, the question is more properly left for the jury to resolve. Siders, 39 N.C. App. at 186, 249 S.E.2d at 860. Accordingly, the trial court erred in granting defendant\u2019s motion for directed verdict on the issue of willful and wanton conduct. The cause is reversed and remanded for trial.\nReversed and remanded.\nJudges MARTIN and HUNTER concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "E. Gregory Stott for plaintiff-appellant.", "Yates, McLamb & Weyher, L.L.P., by R. Scott Brown, Michael W. Washburn and Michael J. Byrne, for defendant-appellee." ], "corrections": "", "head_matter": "ROBBIE McCRAE WILBURN, Plaintiff v. TED WALLACE HONEYCUTT, Defendant\nNo. COA98-1362\n(Filed 19 October 1999)\n1. Negligence\u2014 contributory \u2014 accident\u2014directed verdict improper \u2014 evidence not clearly established\nThe trial court erred in granting defendant\u2019s motion for directed verdict in an accident involving defendant-motorist and plaintiff, who was riding a horse, on the issue of plaintiff\u2019s contributory negligence because taken in the light most favorable to plaintiff and resolving all inconsistencies in his favor, the evidence is not so clearly established that plaintiff had the opportunity to move off the road to avoid the accident.\n2. Negligence\u2014 willful and wanton conduct \u2014 accident\u2014directed verdict improper \u2014 reasonable persons could differ\nThe trial court erred in granting defendant\u2019s motion for directed verdict in an accident involving defendant-motorist and plaintiff, who was riding a horse, on the issue of defendant\u2019s willful and wanton conduct since reasonable persons could differ on their conclusion based on the evidence that: (1) defendant intentionally or with reckless indifference to the consequences did not slow down and willfully ran into plaintiff; and (2) defendant drove on without stopping, knowing he hit plaintiff and his horse.\nAppeal by plaintiff from judgment entered 27 April 1998 by Judge Wiley F. Bowen in Harnett County Superior Court. Heard in the Court of Appeals 25 August 1999.\nE. Gregory Stott for plaintiff-appellant.\nYates, McLamb & Weyher, L.L.P., by R. Scott Brown, Michael W. Washburn and Michael J. Byrne, for defendant-appellee." }, "file_name": "0373-01", "first_page_order": 407, "last_page_order": 411 }