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Page v. Tao

Filed: April 6, 1982.

BARBARA BURNETT PAGE
v.
WILLIAM WENTING TAO



Appeal by plaintiff and defendant from Brewer, Judge. Judgment entered 23 January 1981 in Superior Court, Orange County. Heard in the Court of Appeals 11 February 1982.

Becton, Judge. Judge Hill concurs. Judge Hedrick concurs in part and dissents in part.

Becton

I

Facts

On 4 November 1977 plaintiff, who was travelling with her daughter in her Ford Pinto south towards Greensboro in the right hand lane of Interstate Highway 85 (I-85), was severely injured in an automobile accident. In the area where the accident occurred, the road was flat and level, the pavement was dry, the right lane had a twelve-foot wide asphalt shoulder, and a four to five-foot wide shoulder bordered the left lane. Prior to the accident, five vehicles were travelling south towards Greensboro in the following order: defendant's Toyota, Preston Hood's tractor-trailer, plaintiff's Pinto, William Baucom's tractor-trailer, and Ronald Staton's tractor-trailer. Defendant, driving the lead vehicle, was travelling about six to eight (6 - 8) miles per hour; the four vehicles approached defendant's Toyota travelling approximately fifty-five (55) miles per hour.

When Hood, driving the lead tractor-trailer, realized that defendant's Toyota "looked like it was almost stopped," he "whipped" his truck into the left-hand lane to avoid running into the rear of the Toyota. When plaintiff, whose view of the Toyota was blocked by Hood's truck and who was travelling five or six car lengths behind Hood's truck, saw Hood signal to pass, she took her foot from the accelerator and signaled to turn her car into the left-hand lane. Plaintiff then glanced to the left to see if she could change lanes, but she saw, for the first time, a tanker truck driven by William Baucom, which was passing her in the left lane. When plaintiff looked again ahead of her, Hood's truck had moved to the left. Plaintiff saw for the first time defendant's Toyota, which appeared to be stopped in her lane of traffic. Because the Baucom truck was even with her in the left lane and she could not move over, plaintiff hit her brakes attempting to avoid rear ending the Toyota. She skidded left and was struck twice, first by the Baucom truck passing her and then by Staton's flat-bed truck which was following her.

Plaintiff, thrown from her car, slid across the pavement of I-85, and was seriously injured. Hood and Baucom, who saw the collision in their rear-view mirrors after passing the Toyota, pulled off the left side of the highway. When the Toyota, which was not involved in the collision, continued "chugging" down the road, Hood chased the Toyota on foot, beat on the window, and told defendant to wait until the police arrived. When Hood and Baucom walked toward the scene of the collision, the Toyota pulled away. Hood recorded the Toyota's license number and gave it to the investigating officer.

Plaintiff's Appeal

Plaintiff captions her one and only argument as follows: "Plaintiff's evidence of defendant's negligence was sufficient to support the verdict, and therefore, the court erred in granting defendant's motion for judgment notwithstanding the verdict." We agree with plaintiff.

In ruling on a motion for judgment notwithstanding the verdict, the trial court must be guided by the same principles and standards applicable to motions for directed verdict. Dickinson v. Pake, 284 N.C. 576, 583-85, 201 S.E.2d 897, 902-903 (1974); Summey Page 492} v. Cauthern, 283 N.C. 640, 648, 197 S.E.2d 549 (1973). The trial court must determine whether plaintiff has made out a prima facie case by presenting evidence sufficient to "justify a verdict in [plaintiff's] favor." Cutts v. Casey,. 278 N.C. 390, 411, 180 S.E.2d 297, 307 (1971). In passing upon the sufficiency of the evidence, the trial court's ultimate inquiry is whether the evidence would reasonably satisfy an impartial mind of the truth of the proposition sought to be proved. See Moore v. Railroad, 173 N.C. 311, 92 S.E. 1 (1917). The test used is so well known it needs no citation: All the evidence supporting the nonmovant's claim must be taken as true and considered in the light most favorable to the nonmovant; all contradictions, conflicts, and inconsistencies must be resolved in the nonmovant's favor; and the nonmovant must be given the benefit of every reasonable inference which may be legitimately drawn from the evidence.

Having set forth the standards applicable to the granting of a motion for judgment notwithstanding the verdict, we now set forth applicable principles of law, including the legal duties of motorists, and apply these principles to plaintiff's evidence of defendant's negligence.

A motorist must exercise proper care in the way and manner in which he operates his vehicle, proper care being that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances. Boykin v. Bisstte, 260 N.C. 295, 299, 132 S.E.2d 616, 619 (1963). Separate and apart from this positive duty imposed by common law are specific statutorily imposed duties on motorists. One such statute applicable to this case is G.S. 20-141(h) which, in pertinent part, reads: "No person shall operate a motor vehicle on the highway at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law . . . ." Violation of the standard of care imposed by G.G. 20-141(h) is negligence per se. See Bridges v. Jackson, 255 N.C. 333, 335, 121 S.E.2d 542, 544 (1961).

Generally, when the evidence is in conflict or more than one conclusion can be drawn from the evidence, the case should be submitted to the jury. Murray v. Murray, 296 N.C. 405, 250 S.E.2d 276 (1979); Cutts v. casey ; R. Byrd, Proof of Negligence in North Carolina, 48 N.C.L. Rev. 731, 752-53 (1970). Moreover, since

G.S. 20-141(h) does not fix a speed which makes its violation negligence as a matter of law, whether plaintiff's speed was unreasonably slow and whether traffic was impeded are questions of fact to be resolved by a jury.

Defendant strenuously argues that his conduct is excepted from our slow speed statute because of the testimony from Highway Patrolman J. G. George concerning the mechanical difficulty defendant had with his car. Patrolman George testified that he talked to defendant about the circumstances surrounding the accident:

I asked whether or not he was stopped in the interstate at the time of this accident. He told me that he was coming back from Raleigh, I believe. It was either Raleigh or Durham. He had been having car trouble and he was trying to get his car in. I remember asking how fast did he think he was going coming back. He said he was having trouble with the transmission. He said about 30 miles per hour to 40 miles per hour.

It is true that G.S. 20-141(h) allows a person to operate a motor vehicle at a slower than normal speed "when reduced speed is necessary for safe operation or in compliance with the law." Defendant's evidence that he was experiencing mechanical difficulty does not, as a matter of law, however, except him from coverage under the slow speed statute. As noted by plaintiff in her brief, defendant decided "to remain on the interstate, knowing he had car trouble [and] taking the awesome risk of causing a ...


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