{ "id": 8413630, "name": "JERRY WAYNE WHISNANT, JR., Plaintiff v. ROBERTO CARLOS HERRERA, Defendant", "name_abbreviation": "Whisnant v. Herrera", "decision_date": "2004-11-02", "docket_number": "No. COA03-1607", "first_page": "719", "last_page": "726", "citations": [ { "type": "official", "cite": "166 N.C. App. 719" } ], "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": "559 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "207" } ], "opinion_index": 0 }, { "cite": "354 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138502, 138441, 138512, 138513, 138484 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0573-02", "/nc/354/0573-04", "/nc/354/0573-01", "/nc/354/0573-03", "/nc/354/0573-05" ] }, { "cite": "552 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "6" }, { "page": "6", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 200", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433554 ], "year": 2001, "pin_cites": [ { "page": "207" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0200-01" ] }, { "cite": "322 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "172" }, { "page": "172" } ], "opinion_index": 0 }, { "cite": "312 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4751791 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "193" }, { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0181-01" ] }, { "cite": "480 S.E.2d 636", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "637" } ], "opinion_index": 0 }, { "cite": "345 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53986 ], "year": 1997, "pin_cites": [ { "page": "489" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0488-01" ] }, { "cite": "576 S.E.2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2003, "pin_cites": [ { "page": "141" }, { "page": "194" }, { "page": "140" }, { "page": "196" }, { "page": "141" }, { "page": "141" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 192", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9190111 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "196" }, { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0192-01" ] }, { "cite": "221 S.E.2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "368" } ], "opinion_index": 0 }, { "cite": "289 N.C. 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568007 ], "year": 1976, "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0281-01" ] }, { "cite": "332 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694848, 4685635, 4691143, 4696177, 4697201 ], "year": 1985, "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": "327 S.E.2d 620", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "621" }, { "page": "621-22" }, { "page": "622", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 87", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522881 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "88" }, { "page": "88-89" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0087-01" ] }, { "cite": "402 S.E.2d 883", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "884", "parenthetical": "citing Radford v. Norris, 74 N.C. App. 87, 88, 327 S.E.2d 620, 621, disc. review denied, 314 N.C. 117, 332 S.E.2d 483 (1985)" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 555", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525053 ], "year": 1991, "pin_cites": [ { "page": "557", "parenthetical": "citing Radford v. Norris, 74 N.C. App. 87, 88, 327 S.E.2d 620, 621, disc. review denied, 314 N.C. 117, 332 S.E.2d 483 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0555-01" ] }, { "cite": "113 S.E. 672", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 3, "year": 1922, "pin_cites": [ { "page": "673" }, { "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "184 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269625 ], "year": 1922, "pin_cites": [ { "page": "180" } ], "opinion_index": 0, "case_paths": [ "/nc/184/0179-01" ] }, { "cite": "154 S.E.2d 468", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "471" } ], "opinion_index": 0 }, { "cite": "270 N.C. 367", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568092 ], "year": 1967, "pin_cites": [ { "page": "372" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0367-01" ] }, { "cite": "400 S.E.2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "92" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527889 ], "year": 1991, "pin_cites": [ { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0462-01" ] }, { "cite": "298 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "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": 680, "char_count": 16686, "ocr_confidence": 0.745, "pagerank": { "raw": 1.7950926432140025e-07, "percentile": 0.7155577410111554 }, "sha256": "d46a8f1f60173eef2b415c188552d46468923533b0b4d245d4b99759964387e8", "simhash": "1:2f644082bf2e5476", "word_count": 2668 }, "last_updated": "2023-07-14T18:02:59.875915+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and McCULLOUGH concur." ], "parties": [ "JERRY WAYNE WHISNANT, JR., Plaintiff v. ROBERTO CARLOS HERRERA, Defendant" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nJerry Wayne Whisnant, Jr. (\u201cplaintiff\u2019) appeals the trial court judgment denying plaintiff any recovery from Roberto Carlos Herrera (\u201cdefendant\u201d) and the trial court order denying plaintiffs motion for judgment notwithstanding the verdict and motion for a new trial. For the reasons discussed herein, we affirm the trial court\u2019s judgment.\nThe facts and procedural history pertinent to the instant appeal are as follows: On 31 October 2000, plaintiff was traveling in his vehicle in the northbound lane of North Main Street Parallel (\u201cMain Street\u201d) in Granite Falls. As plaintiff proceeded along Main Street, defendant was stopped in his vehicle behind a third vehicle parked in the southbound lane of Main Street. As plaintiff\u2019s vehicle approached, defendant drove his vehicle from the southbound lane of Main Street into the northbound lane of Main Street, in an attempt to maneuver his vehicle around the vehicle blocking the southbound lane. When plaintiff saw defendant\u2019s vehicle enter plaintiffs lane of travel, plaintiff applied his vehicle\u2019s brakes. The two vehicles nevertheless collided \u201chead-on\u201d in the northbound lane of Main Street.\nGranite Falls Police Department Officer Chris Robinson (\u201cOfficer Robinson\u201d) investigated the accident. After examining the scene of the accident, Officer Robinson determined that defendant\u2019s vehicle had not left any skid marks and that plaintiff\u2019s vehicle had left skid marks measuring thirty-two feet in length. Officer Robinson then estimated that plaintiff\u2019s vehicle was traveling forty miles per hour at the moment plaintiff first applied the brakes, and thirty miles per hour at the moment the two vehicles collided. Following his investigation, Officer Robinson cited defendant for driving left of center.\nAs a result of the accident, plaintiff received injuries to his neck and lower back. On 31 August 2001, plaintiff filed a complaint against defendant, alleging that defendant\u2019s negligent operation of his vehicle was the proximate cause of the accident. On 2 January 2002, defendant filed an answer denying plaintiff\u2019s allegations and asserting the affirmative defense of contributory negligence.\nThe case proceeded to trial the week of 15 January 2003. At trial, plaintiff testified that, as his vehicle approached the vehicle parked in the southbound lane, plaintiff maneuvered his vehicle toward the shoulder of the northbound lane. Plaintiff further testified that he was unsure of his exact speed prior to applying his vehicle\u2019s brakes, but he did not believe that he was speeding. Plaintiff also testified that, because it was Halloween and he was aware there were children in the area, he was paying careful attention prior to the accident.\nDefendant testified that Main Street was narrow and barely wide enough for two cars to pass. He further testified that as he maneuvered his vehicle around the vehicle parked in the southbound lane of travel, he did not see plaintiff\u2019s vehicle approaching. Defendant testified that there were children entering and exiting the parked vehicle at the time of the accident, and he admitted that in order to maneuver his vehicle around the parked vehicle, he was forced to enter the northbound lane of Main Street.\nAt the close of all the evidence, both parties moved for a directed verdict on the issues of negligence and contributory negligence. The trial court denied both motions and subsequently submitted both issues to the jury. On 16 January 2003, the jury found defendant negligent and plaintiff contributorily negligent, thereby denying plaintiff any recovery for damages. On 30 April 2003, the trial court entered judgment in the case and ordered that plaintiff have and recover nothing from defendant. On 9 May 2003, plaintiff moved the trial court for judgment notwithstanding the verdict, or, in the alternative, a new trial. On 24 June 2003, the trial court denied plaintiff\u2019s motion. Plaintiff appeals.\nThe issues on appeal are whether the trial court erred by: (I) denying plaintiff\u2019s motion for directed verdict; and (II) denying plaintiff\u2019s motion for judgment notwithstanding the verdict, or, in the alternative, new trial.\nPlaintiff first argues that the trial court erred in denying his motion for directed verdict. Plaintiff asserts that there was insufficient evidence to submit the issue of contributory negligence to the jury. We disagree.\nThe purpose of a motion for directed verdict is \u201cto test the legal sufficiency of the evidence to take the case to the jury and to support a verdict for plaintiffs[.]\u201d Wallace v. Evans, 60 N.C. App. 145, 146, 298 S.E.2d 193, 194 (1982). The evidence should be considered in the light most favorable to the nonmovant, and the nonmovant is to be given the benefit of all reasonable inferences from the evidence. Id. \u201cIf there is more than a scintilla of evidence supporting each element of the nonmovant\u2019s case, the motion for directed verdict should be denied.\u201d Snead v. Holloman, 101 N.C. App. 462, 464, 400 S.E.2d 91, 92 (1991). Thus, where a defendant pleads an affirmative defense such as contributory negligence, \u201ca 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.\u201d Id.\nContributory negligence is \u201cnegligence on the part of the plaintiff which joins, simultaneously or successively, with the negligence of the defendant ... to produce the injury of which the plaintiff complains.\u201d Jackson v. McBride, 270 N.C. 367, 372, 154 S.E.2d 468, 471 (1967). Our Supreme Court has previously stated that \u201ctwo elements, at least, are necessary to constitute contributory negligence[.]\u201d Construction Co. v. R.R., 184 N.C. 179, 180, 113 S.E. 672, 673 (1922). The defendant must demonstrate: (1) a want of due care on the part of the plaintiff; and (2) a proximate connection between the plaintiff\u2019s negligence and the injury. Id. \u201cThere must be not only negligence on the part of the plaintiff, but contributory negligence, a real causal connection between the plaintiff\u2019s negligent act and the injury, or it is no defense to the action.\u201d Id. (emphasis in original).\n\u201cIf the evidence raises only a \u2018mere conjecture\u2019 of contributory negligence, the issue should not be submitted to the jury.\u201d Brown v. Wilkins, 102 N.C. App. 555, 557, 402 S.E.2d 883, 884 (1991) (citing Radford v. Norris, 74 N.C. App. 87, 88, 327 S.E.2d 620, 621, disc. review denied, 314 N.C. 117, 332 S.E.2d 483 (1985)). \u201cHowever, since negligence usually involves issues of due care and reasonableness of actions under the circumstances, it is especially appropriate for determination by the jury.\u201d Radford, 74 N.C. App. at 88-89, 327 S.E.2d at 621-22. \u201cIn \u2018borderline cases,\u2019 fairness and judicial economy suggest that courts should decide in favor of submitting issues to the jury.\u201d Id. at 89, 327 S.E.2d at 622 (citation omitted).\nWhen considered in the light most favorable to defendant, the evidence in the instant case tends to show the following: (1) Main Street is a narrow road that is barely wide enough for two cars to pass; (2) as plaintiff was traveling northbound on Main Street, defendant maneuvered his vehicle around a vehicle parked in the southbound lane of Main Street; (3) there were children entering and exiting the parked vehicle at the time of the accident; (4) although plaintiff applied his brakes, plaintiffs vehicle and defendant\u2019s vehicle nevertheless collided in the northbound lane of Main Street; (5) prior to the accident, plaintiff\u2019s vehicle was traveling at approximately forty miles per hour. We conclude that this evidence does more than raise \u201cmere conjecture\u201d on the issue of contributory negligence.\nWe recognize that our Supreme Court has previously stated that \u201c[ojrdinarily a person has no duty to anticipate negligence on the part of others. . . . [H]e has the right to assume and to act on the assumption that others will observe the rules of the road and obey the law.\u201d Penland v. Green, 289 N.C. 281, 283, 221 S.E.2d 365, 368 (1976). However, in Penland, the Court further stated that \u201cthe right to rely on this assumption is not absolute.\u201d Id. Thus, where \u201ccircumstances existing at the time are such as reasonably to put a person on notice that he cannot rely on the assumption, he is under a duty to exercise that care which a reasonably careful and prudent person would exercise under all the circumstances then existing.\u201d Id.\nIn the instant case, the evidence presented at trial tends to show that as plaintiff approached the scene of the accident, plaintiff was aware it was Halloween and that children might be in the area. Nevertheless, plaintiff continued to exceed the speed limit of Main Street, even though, according to defendant, children were exiting the vehicle parked in the southbound lane. We conclude that this evidence was sufficient to extinguish the presumption in plaintiff\u2019s favor and is sufficient to support the trial court\u2019s decision to submit the issue of contributory negligence to the jury.\nPlaintiff maintains that defendant\u2019s evidence failed to establish a proximate causal connection between plaintiff\u2019s allegedly negligent actions and the accident. In support of this assertion, plaintiff cites Ellis v. Whitaker, 156 N.C. App. 192, 576 S.E.2d 138 (2003). The plaintiff in Ellis appealed the trial court\u2019s judgment finding her contribu-torily negligent for an accident involving defendant and denying her motions for judgment notwithstanding the verdict. This Court reversed, concluding that because \u201cthe evidence failed to establish a proximate connection between plaintiffs speed and the accident[,]\u201d the trial court erred in submitting the issue of contributory negligence to the jury. 156 N.C. App. at 196, 576 S.E.2d at 141. We conclude that the instant case is distinguishable from Ellis.\nIn Ellis, the defendant-driver admitted that he did not see plaintiff\u2019s vehicle prior to impact, but nevertheless testified that he thought that the plaintiff was speeding. According to the defendant-driver, the plaintiff was traveling \u201capproximately forty-five to fifty-five miles per hour\u201d prior to impact, an estimate that the defendant-driver \u201c \u2018arrived at . . . based upon the severity of the impact of [plaintiff\u2019s] car into [defendants\u2019] car and what [plaintiff\u2019s] car did to [defendants\u2019] car as a result of the impact.\u2019 \u201d Id. at 194, 576 S.E.2d at 140. On appeal, this Court recognized that \u201c[defendants\u2019 evidence regarding plaintiff\u2019s speed suggested negligence on her part[.]\u201d Id. at 196, 576 S.E.2d at 141. However, we concluded that \u201cwhether or not she was speeding, \u2018plaintiff was not required to anticipate that the defendant would be negligent.\u2019 \u201d Id. (quoting Cicogna v. Holder, 345 N.C. 488, 489, 480 S.E.2d 636, 637 (1997)). Thus, we held that \u201c[w]ithout more, defendants failed to establish the \u2018real causal connection\u2019 between plaintiff\u2019s negligence and the accident necessary to prove plaintiff was contributorily negligent.\u201d Ellis, 156 N.C. App. at 196, 576 S.E.2d at 141.\nIn the instant case, the evidence presented at trial is not so speculative as to warrant a similar disposition. Officer Robinson investigated the scene and measured the visible skid marks immediately after the accident. Officer Robinson testified that although he \u201cdidn\u2019t result [it] as being a contributing factor,\u201d he estimated plaintiff\u2019s speed prior to the accident to be \u201capproximately forty\u201d miles per hour, or five miles over the speed limit. Officer Robinson also testified that he measured the skid marks of plaintiff\u2019s vehicle and found them to be thirty-two feet long. Defendant testified that the roadway upon which the accident occurred was \u201cvery narrow\u201d and \u201cbarely wide enough for two cars to pass.\u201d Although plaintiff testified that at the time of the accident he was \u201cunsure\u201d of his speed, he further testified that he did not believe he was speeding because \u201cI kind of have a feel for how I\u2019m traveling as to what the vehicle is going to do.\u201d Plaintiff also testified that he saw the van parked in front of defendant\u2019s vehicle, but \u201c[f]rom the time I seen the defendant, I was right there. There was nothing else I could do.\u201d\nWe conclude the evidence presented at trial is sufficient to support the causal element of a contributory negligence defense. \u201cProximate cause is an inference of fact to be drawn from other facts and circumstances. Only when the facts are all admitted and only one inference may be drawn from them will the court declare whether an act was the proximate cause of an injury or not.\u201d Adams v. Mills, 312 N.C. 181, 193, 322 S.E.2d 164, 172 (1984). Unlike the facts of Ellis, the facts and circumstances of the instant case suggest a \u201creal causal connection\u201d exists between plaintiffs actions and the accident. Viewed in the light most favorable to defendant, the evidence produced at trial tends to show that plaintiff was exceeding the speed limit on a narrow road while approaching a vehicle stopped in the opposite lane of travel. Plaintiff was driving on Halloween night, and in an area where children were exiting and entering vehicles on the roadway.\n\u201c[W]hen the principles of proximate causation are applied to the instant case, the issue becomes whether a person of ordinary prudence in the plaintiffs position would have foreseen that an accident, or some generally injurious consequence would occur under the facts as they existed.\u201d Adams, 312 N.C. at 194, 322 S.E.2d at 172. In light of the evidence produced at trial, the jury could have found that, in the exercise of reasonable and ordinary prudence, plaintiff could have foreseen that some generally injurious consequence might occur were he to continue speeding on a narrow road toward a vehicle stopped in the opposing lane and from which children were exiting. Therefore, we conclude that the trial court did not err in denying plaintiffs motion for directed verdict on the issue of contributory negligence.\nPlaintiff next argues that the trial court erred in denying his post-trial motion for judgment notwithstanding the verdict, or, in the alternative, new trial. We note initially that a motion for judgment notwithstanding the verdict \u201cis simply a renewal of a party\u2019s earlier motion for directed verdict[.]\u201d Kearns v. Horsley, 144 N.C. App. 200, 207, 552 S.E.2d 1, 6, disc. review denied, 354 N.C. 573, 559 S.E.2d 179 (2001). Thus, \u201c \u2018on appeal the standard of review for a [judgment notwithstanding the verdict] is the same as that for a directed verdict, that is whether the evidence was sufficient to go to the jury.\u2019 \u201d Id. at 207, 552 S.E.2d at 6 (citation omitted). Therefore, because we conclude supra that the trial court did not err in denying plaintiff\u2019s motion for directed verdict, we also conclude that the trial court did not err in denying plaintiffs post-trial motion for judgment notwithstanding the verdict.\nFurthermore, after reviewing the record in the instant case, we have determined that none of the causes or grounds listed under N.C. Gen. Stat. \u00a7 1A-1, Rule 59 (2003) exist in the instant case, and thus a new trial was not required. Therefore, we hold that the trial court did not err in denying defendant\u2019s post-trial motion, and accordingly, we affirm the trial court\u2019s judgment.\nAffirmed.\nJudges HUNTER and McCULLOUGH concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Campbell & Taylor, P.C., by Robyn M. Lacy, for plaintiff - appellant.", "Morris, York, Williams, Surles & Barringer, L.L.P, by John P. Barringer and Heather G. Connor, for defendant-appellee." ], "corrections": "", "head_matter": "JERRY WAYNE WHISNANT, JR., Plaintiff v. ROBERTO CARLOS HERRERA, Defendant\nNo. COA03-1607\n(Filed 2 November 2004)\n1. Motor Vehicles\u2014 contributory \u2014 negligence\u2014automobile collision \u2014 speeding\nThere was sufficient evidence to submit contributory negligence to the jury where a collision occurred as defendant pulled around a stopped car on a narrow street on Halloween night, and plaintiff\u2019s speed (estimated by an officer after the accident) was five miles an hour over the speed limit even though children were leaving the parked car. Plaintiff could have foreseen that some generally injurious consequence might occur.\n2. Civil Procedure\u2014 motion for j.n.o.v. and new trial \u2014 underlying motion for directed verdict denied\nThere was no error in the denial of a motion for a judgment notwithstanding the verdict where the underlying motion for a directed verdict was properly denied. Furthermore, none of the grounds for a new trial listed in \u00d1.C.G.S. \u00a7 1A-1, Rule 59 were present.\nAppeal by plaintiff from judgment entered 30 April 2003 and order entered 24 June 2003 by Judge John R. Mull in Catawba County District Court. Heard in the Court of Appeals 14 September 2004.\nCampbell & Taylor, P.C., by Robyn M. Lacy, for plaintiff - appellant.\nMorris, York, Williams, Surles & Barringer, L.L.P, by John P. Barringer and Heather G. Connor, for defendant-appellee." }, "file_name": "0719-01", "first_page_order": 749, "last_page_order": 756 }