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McFetters v. McFetters

Filed: April 17, 1990.


Appeal by plaintiff from judgment entered 6 October 1988 by Judge Carlton E. Fellers in Guilford County Superior Court.

Greene, Judge. Judges Johnson and Eagles concur.


Plaintiff appeals the trial court's directed verdict for defendants at the close of plaintiff's evidence in a motor vehicle collision personal-injury suit.

The evidence in the light most favorable to plaintiff shows that plaintiff was a front-seat passenger in a station wagon car driven by her 15-year-old son, Scott. Plaintiff later dismissed suit against her husband, but original defendants were plaintiff's husband, Richard McFetters ("Richard"), the driver of the milk truck with which plaintiff's car collided, David M. McDaris ("McDaris"), and the owner of the company employing McDaris, James C. Rice Jr. ("Rice"). A "learner's permit" authorized Scott to drive the car, subject to a licensed driver's oversight. The evidence tends to show that plaintiff, Richard, her son Scott, and another son were riding in the car together. Richard owned the car and was also owner of a landscaping business. On the day of the collision, Richard and Scott were on their way to inspect landscaping materials for a future job. Plaintiff had joined Richard and Scott on their business trip so that she could visit relatives in the area. Plaintiff and her other son had joined Scott and Richard for breakfast, and were riding with Richard and Scott. Plaintiff's family began the trip with Richard driving and plaintiff riding in the back seat. Plaintiff became carsick. Richard stopped the car at a convenience store to buy plaintiff a soft drink, told plaintiff to ride in the front seat, and asked Scott to drive. Richard, Scott and plaintiff testified that Richard was in charge of the car, and actually directed Scott in his driving.

After Scott began driving, the car traveled approximately three miles, approached and stopped at a stop sign controlling a T-shaped intersection. The servient highway connected with the dominant highway at an angle. Another car was already at the intersection, and it pulled away from the intersection ahead of plaintiff's car. Scott intended to turn left onto the dominant highway perpendicular to the servient highway on which the car approached the intersection. McDaris was driving a fully-loaded milk tanker-truck which approached the intersection from the left arm of the "T" intersection. Scott looked right and left at the intersection, saw no approaching vehicle, drove the car into the truck's lane of travel. After plaintiff's car entered the dominant highway, Richard saw defendant's truck crest a hill some 250 feet away and yelled for

Scott to stop the vehicle. Scott stopped the vehicle in the truck's lane of travel after traveling five feet. The posted speed limit was 20 miles per hour at the crest of the hill, pursuant to a road sign alerting dominant highway travelers that the intersection lay ahead. The posted speed limit on the dominant highway between the crest of the hill and the intersection was 45 miles per hour. Richard and Scott testified that the truck appeared on the dominant highway moving northward toward the car at a speed of 50 miles per hour. McDaris testified that he was unaware that the speed limit was 20 miles per hour at the crest of the hill, first admitted that he stated that he was traveling at 45 miles per hour, then stated that he was unaware of his speed prior to the collision. McDaris saw another, brown, car turn left from the intersection, and he braked momentarily, but did not see plaintiff's car pull into his lane of travel until approximately twenty-five feet before colliding with it as it sat in the truck's lane. Just before the collision, McDaris looked to the other lane of travel, braked, and swerved toward the stopped car. The collision occurred in the truck's lane of travel. No traffic approached on the opposite lane that would have prevented the truck from entering the other lane of traffic to avoid the automobile. Plaintiff gave evidence showing that the car caught the corner of the truck's bumper, and both vehicles came to rest astride the centerline of the highway, approximately 30 feet from impact. The car was damaged in the front and left front panels.

Plaintiff was injured in the collision and brought suit against Richard, McDaris and Rice. Scott also suffered a split lip in the collision, but did not file suit. No one else was injured. Plaintiff alleged that McDaris was negligent in failing to keep a proper lookout, failing to reduce his speed to avoid the collision, failing to keep the truck under control, driving at a speed exceeding the posted speed limit and greater than was reasonable and prudent under existing conditions. Defendants answered, denying plaintiff's allegations, alleging that Scott was contributorily negligent, and that Scott's negligence was imputed to plaintiff. At the close of her evidence, plaintiff voluntarily dismissed her suit against Richard. Defendants McDaris and Rice moved for directed verdict and the trial court entered directed verdict for defendants.

The issues presented for our review are whether the trial court erred in directing verdict for defendants (I) on defendant's negligence and (II) on plaintiff's contributory negligence.

The purpose of a motion for directed verdict is to test the legal sufficiency of the evidence for submission to the jury and to support a verdict for the non-moving party. N.C.G.S. ยง 1A-1, Rule 50 (1989); Eatman v. Bunn, 72 N.C. App. 504, 506, 325 S.E.2d 50, 51 (1985). In deciding the motion, the trial court must treat non-movant's evidence as true, considering the evidence in the light most favorable to non-movant, and resolving all inconsistencies, contradictions and conflicts for non-movant, giving non-movant the benefit of all reasonable inferences drawn from the evidence. Id., at 506, 325 S.E.2d at 51-52. Non-movant's evidence which raises a mere possibility or conjecture cannot defeat a motion for directed verdict. Alston v. Herrick, 76 N.C. App. 246, 249, 332 S.E.2d 720, 722, affirmed, 315 N.C. 386, 337 S.E.2d 851 (1986). If, however, non-movant shows more than a scintilla of evidence, the court must deny the motion. Broyhill v. Coppage, 79 N.C. App. 221, 226, 339 S.E.2d 32, 36 (1986). Grant of motion for directed verdict in negligence cases is rare; the issues "are ordinarily not susceptible of summary adjudication because application of the prudent man test, or any other applicable standard of care, is generally for the jury." Taylor v. Walker, 320 N.C. 729, 734, 360 S.E.2d 796, 799 (1987). "A verdict may never be directed when there is conflicting evidence on contested issues of fact." DeHart v. R/S Financial Corp., 78 N.C. App. 93, 98, 337 S.E.2d 94, 98, cert. denied, 316 N.C. 376, 342 S.E.2d 893 (1986) (citation omitted).


Defendant's ...

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