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Wilmoth v. Hemric

Court of Appeals of North Carolina

December 2, 2014

GLENN R. WILMOTH, Plaintiff,
v.
GILBERT W. HEMRIC and VAN W. HEMRIC, Defendants

Heard in the Court of Appeals November 5, 2014

Willardson & Lipscomb, L.L.P., by William F. Lipscomb, for defendants-appellants.

Jay Vannoy and Franklin D. Smith, for plaintiff-appellee.

ELMORE, Judge. Judges ERVIN and DAVIS concur.

OPINION

Appeal by defendants from judgment entered 18 December 2013 by Judge A. Robinson Hassell in Surry County Superior Court, No. 11 CVS 533.

ELMORE, Judge.

On 21 November 2013, a jury found that plaintiff was injured as a result of defendants' negligence. Defendants appeal from the judgment that resulted from the jury verdict and, in relevant part, challenge the trial court's denial of their motion for a directed verdict. After careful consideration, we reverse the trial court's denial of that motion and vacate the judgment.

I. Facts

On 9 July 2008, Glenn Wilmoth (plaintiff) observed two cows wearing numbered purple identification tags in his sister's garden between 4:30 p.m. and 5:30 p.m. Plaintiff moved the cows out of his sister's garden to a nearby wooded area. Later that evening, between 8:30 p.m. and 8:45 p.m., plaintiff went back to his sister's house. As he was

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leaving, he saw the same two cows at the edge of the driveway. Plaintiff went back inside the house to retrieve his brother-in-law. Plaintiff and his brother-in-law exited the house only to find one cow standing in the driveway. Plaintiff walked around the premises for the purpose of locating the other cow, at which point that cow charged and struck him, resulting in severe injuries to his back and legs.

Plaintiff's sister transported plaintiff to the hospital, and he stayed there overnight. Approximately five days after plaintiff left the hospital, he called Van Hemric (defendant Van Hemric) after discovering that he might own the cows. Defendant Van Hemric did not answer the phone so plaintiff left a voicemail.

On or about 20 July 2008, approximately eleven days after plaintiff sustained his injuries, a vehicle struck a cow less than a mile from plaintiff's home on CC Camp Road. Plaintiff went to the accident scene and was able to identify the cow, based on the purple tag, as the same one that injured him. Plaintiff called defendant Van Hemric a day later and was able to speak with him on the phone. Plaintiff told defendant Van Hemric about the vehicle collision and the prior event that led to his injuries.

On 25 April 2011, plaintiff filed a complaint alleging, in relevant part, that defendants failed to act " as . . . ordinary, reasonable, and prudent person[s] would have done upon learning the cattle ...


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