On 23 January 1993, Frances B. Rogers (“plaintiff”) and her family visited Sportsworld of Rocky Mount, Inc., a family-oriented recreational facility where patrons pay a fee to skatе on a polished wooden floor. Plaintiff paid an admission fee and obtained skates supplied by Sportsworld. The rental attendant failed to examine the skates tо determine if they were in good operating condition. After putting on the skates, plaintiff entered the skating rink and began skating in a counter-clockwise direction. When plaintiff was approximately one-half to three-fourths of the way around the rink, she noticed the skate on her right foot would “stop and release” which prevented her from skating smoothly. Plaintiff was not aware of the specific cause of the problem. Plaintiff could not locate a rink employee to assist her, so she crossed thе rink on the defective skate to get to her husband who was located near the side of the rink. When she approached the side of the rink, plaintiff proceedеd to exit the rink on her own by stepping up with her right foot first. As plaintiff planted her right foot and brought her left foot forward, the skate on her right foot suddenly unlocked and “jerked to the right,” causing plaintiff to fall, breaking her right ankle.
On 22 January 1996, plaintiff filed a complaint alleging negligence against Sportsworld of Rocky Mount, Inc., Rawl Industries, Inc., Sportsworld of Rocky Mоunt Limited Partnership, and T.J.O., Inc. (“T.J.O.”) (collectively “defendants”). At the conclusion of plaintiff’s case, all defendants filed motions for directed verdict. The trial court granted the mоtions of defendants Sportsworld of Rocky Mount, Inc., Rawl Industries, Inc., and Sportsworld of Rocky Mount Limited Partnership, but denied the motion of defendant T.J.O.
During the trial, plaintiff contended that defendant T.J.O. was negligent by failing to use proper care in inspecting and repairing the roller skate; renting a defective skate to plaintiff; having an unreasonably unsafe condition on the premises; and failing to provide adequate supervision and assistance to skaters. Defendant T.J.O. countered with evidence that plaintiff was сontributorily negligent by failing to remove herself from the rink in the most expeditious manner after discovering she was skating on a defective skate.
*711 Plaintiff’s case against T.J.O. proceeded to the jury. The issues submitted to the jury were answered as follows:
1. Was the plaintiff injured by the negligence of the defendant? ANSWER: Yes.
2. Did the plaintiff by her own negligence contributе to her injury?
ANSWER: Yes.
3. What amount, if any, is plaintiff entitled to recover from defendant for damages due to her injuries?
ANSWER: $15,500.00.
When the verdict was read, the judge instructed the jury as follows:
After I recеived your verdict sheet, it’s,incumbent upon me to inform you that in North Carolina a yes response on Issue Number Two as to contributory negligence precludes your making any answer on Issue Number Three. In light of that, I’m going to ask you to go back to the jury room and reconsider your answer on Number Two and Number Three — your answers.
After deliberating apprоximately 20 minutes, the jury returned to the courtroom having changed their answer to issue #2 from “Yes” to “No.” The jury also changed their answer to issue #3 by reducing the damages award from $15,500.00 to $10,000.00. The second verdict was accepted by the court and the judgment was entered. Additionally, the court assessed $1,000.00 in cost to defendant. Defendant T.J.O. excepted and appealed.
The issues presented by this appeal are (1) whether the trial court erred in concluding that the original jury verdict was “inconsistent” and in resubmitting the issues of contributory negligence and damages to the jury, and (2) whether the trial court erred in assessing witness’ fees to defendant T.J.O. as part of the costs of the action.
Defendant T.J.O. first argues that “the trial court erred in refusing to enter judgment on the first verdict returned by the jury and striking its finding as to damages.” We agree.
In North Carolina, a jury may be requested to return either a general or special verdict. N.C. Gen. Stat. § 1A-1, Rule 49(a) (1990). Usually, civil cases are resolved by a general verdict, which is con
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sistent with the proper function of a jury to considеr the law and facts to achieve justice for the parties.
See Porter v. R.R.,
“it is the duty of the presiding judgе, before accepting a verdict, to scrutinize its form and substance to prevent insufficient or inconsistent findings from becoming a record of the court. Therefore, whеre the findings are indefinite or inconsistent, the presiding judge may give additional instructions and direct the jury to retire again and bring in a proper verdictf.]”
Id.
When the findings are consistent, yet rejected by the court as a matter of law, the appellate court will remand the cause for appropriate proceedings.
See id.
at 272,
While no North Carоlina case has defined the phrase “inconsistent verdict,” previous cases with similar procedural facts as the case at bar have invariably held that when a jury finds bоth that plaintiff was injured by the negligence of defendant and that plaintiff by her own negligence contributed to her injury, and subsequently assesses damages, plaintiff is not entitled to recover.
Jordan v. Flake,
The facts in
Swann
are similar to the case at bar. In
Swann,
the jury determined that the defendant was negligent and the plaintiff was contributorily negligent, yet awarded damages to plaintiff. The trial court instructed the jury that its answers were inconsistent and directed it to reconsider its verdict as to cоntributory negligence and damages. The jury reconvened and changed its contributory negligence answer from “yes” to “no.” The Supreme Court held that the trial court erred because the jury’s original answers were not incon
*713
sistent. The Supreme Court further held that the court should have accepted the verdict and rendered judgment thereon, trеating the damages answer as surplusage.
Swann,
243 N.C at 286,
We conclude that the case at bar is in accordance with
Swann.
Thus, it is clear that the presiding judge committed error in holding that the jury’s first answers to issues #2 and #3 were “inconsistent.” On the jury’s first verdict sheet, they made factual findings that both plaintiff and defendant T.J.O. were negligent. Thus, under the general doctrine of contributory negligence, plaintiff was barred from any recovery.
Champs Convenience Stores v. United Chemical Co.,
Lastly, defendant T.J.O. argues that the trial court did not have the authority to order the company to pаy expert witness expenses as costs. We agree.
A trial court may only award costs in accordance with statutory authority.
Town of Chapel Hill v. Fox,
In the present case, Dr. Gregory Nelson and Dr. Adolpho H. Marsigli provided expert deposition testimony. Dr. Nelson testified that he was not served with a subpoena. Therefore, the trial court abused its discretion and erroneously assessed Dr. Nelson’s $700.00 expert witness fee upon defendant. It is unclear whether Dr. Marsigli *714 was subpoenaed. During Dr. Marsigli’s deposition testimony, he appeared not to know whether he was subpoenaed. In fact, as defendant T.J.O. contends, it appeared that Dr. Marsigli was unsure of exactly what a subpoena was. Based on this evidence, it is not appropriate for this Court to examine whether the trial court’s assessment of Dr. Marsigli’s expert witness costs was an abuse of discretion. Thus, we remand this question to the trial court to determine whether Dr. Marsigli was subpoenaed and to consider if a different cost assessment would be appropriate. See id.
We reverse the judgment of the trial court and remand this case for entry of judgment in accordance with this opinion.
Reversed and Remanded.