24 N.C. App. 440 | N.C. Ct. App. | 1975
We believe that the directed verdict was improperly granted. In determining whether a motion for directed verdict should be granted, the test to be applied is whether the evidence, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, affords but one conclusion as to the verdict that reasonable men could have reached. See generally Cutts v. Casey, 278 N.C. 390, 180 S.E. 2d 297; Louis, A Survey of Decisions Under The New North Carolina Rules of Civil Procedure, 50 N.C. L. Rev. 729 (1972). In applying this test, it is elementary that the trial court must consider all the evidence in the light most favorable to the plaintiff. Woodard v. McGee and Little v. McGee, 21 N.C. App. 487, 204 S.E. 2d 871; Dickinson v. Pake, 284 N.C. 576, 201 S.E. 2d 897. “Whether [this] evidence is sufficient to create an issue of fact for the jury is solely a question of law to be determined by the court.” Wright and Miller, Federal Practice and Procedure, § 2524 (1971) ; see Cutts v. Casey, supra (concurring opinion).
“Ordinarily the mere fact of a collision with a vehicle ahead furnishes some evidence that the following motorist was negligent as to speed, was following too closely, or failed to keep a proper lookout.” Clark v. Scheld, 253 N.C. 732, 737, 117 S.E. 2d 838, 842. We have held, however, that this is “by no means an absolute rule to be mechanically applied in every rear-end collision case. Whether in a particular case there be sufficient evi
In the case at bar, the evidence, taken in the light most favorable to plaintiff, tends to show that plaintiff was stopped and had been stopped on Park Road “for quite a while” with her left turn signal on; that traffic was heavy, and she was waiting for an opportunity to turn; that the road may have been wet; that plaintiff heard a loud horn, glanced into the rear-view mirror and may have seen defendant’s car moving forward; and that the impact was substantial. As a result of the collision, plaintiff’s evidence shows that plaintiff sustained both personal injuries for which she has been under treatment and property damage in that her car would no longer run properly. We believe that this evidence at least creates a legitimate inference that defendant may have been negligent in following too closely or in failing to keep a proper lookout. While it is possible that defendant was exercising every care which a reasonable and prudent driver would have exercised under the circumstances confronting her, it appears that under plaintiff’s evidence, reasonable and prudent men in the exercise of impartial judgment might reach a different conclusion as to both defendant’s negligence and plaintiff’s damage. In such a case a directed verdict will not lie. We find plaintiffs’ assignment of error to the trial judge’s granting of the motion for directed verdict to be meritorious.
Plaintiff has also assigned as error the trial court’s failure to allow evidence of damage to the car on the ground that plaintiff failed to allege a separate cause of action for property damage. While we do not deem it necessary to reach the merits of plaintiff’s contention in light of the holding above, we note that pursuant to Rule 15(a) of the North Carolina Rules of Civil Procedure, plaintiff may yet apply to the trial court for leave to amend her complaint.
New trial.
