365 S.E.2d 192 | N.C. Ct. App. | 1988
James Howard WIGGINS
v.
PARAMOUNT MOTOR SALES, INCORPORATED, and Spaldin Allison, t/d/b/a Allison's Ditching & Septic Tank Services.
Court of Appeals of North Carolina.
*193 Alley, Hyler, Killian, Kersten, Davis & Smathers by Patrick U. Smathers and Robert J. Lopez, Canton, for plaintiff-appellant.
*194 Morris, Golding, Phillips & Cloninger by Thomas R. Bell, Jr., Asheville, for defendant-appellee Paramount Motor Sales, Inc.
Roberts, Stevens & Cogburn, P.A. by Frank P. Graham and Glenn S. Gentry, Asheville, for defendant-appellee Spaldin Allison, t/d/b/a Allison's Ditching & Septic Tank Services.
WELLS, Judge.
Plaintiff first contends that the trial court erred in granting defendants' Motions for a Directed Verdict. We agree as to defendant Allison and award a new trial, but we affirm the trial court's Order as to defendant Paramount Motor Sales, Inc.
A Motion for a Directed Verdict under N.C.Gen.Stat. § 1A-1, Rule 50(a) of the Rules of Civil Procedure tests the legal sufficiency of the evidence to take the case to the jury and support a verdict for the plaintiff. On such a motion, the plaintiff's evidence must be taken as true and the evidence must be considered in the light most favorable to the plaintiff, giving the plaintiff the benefit of every reasonable inference to be drawn therefrom. A directed verdict for the defendant is not properly allowed unless it appears as a matter of law that a recovery cannot be had by the plaintiff upon any view of the facts that the evidence reasonably tends to establish. Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1977); Everhart v. LeBrun, 52 N.C.App. 139, 277 S.E.2d 816 (1981); see also Koonce v. May, 59 N.C. App. 633, 298 S.E.2d 69 (1982). As our Supreme Court has recently stated, "[O]nly in exceptional cases is it proper to enter a directed verdict ... against a plaintiff in a negligence case." Taylor v. Walker, 320 N.C. 729, 360 S.E.2d 796 (1987). "Issues arising in negligence cases 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." Id.
Whether a motor vehicle is being operated on a public highway or elsewhere, the driver must use the care which a reasonable person would use in like circumstances to avoid injury to another. McCall v. Dixie Cartage & Warehousing, Inc., 272 N.C. 190, 158 S.E.2d 72 (1967) (accident at loading ramp of a warehouse); Bennett v. Young, 266 N.C. 164, 145 S.E.2d 853 (1965) (construction site accident); see also Speight v. Hinnant, 61 N.C.App. 711, 301 S.E.2d 520 (1983) (driveway accident).
N.C.Gen.Stat. § 20-163 (1983), "Unattended motor vehicles," provides, in pertinent part: "No person ... in charge of a motor vehicle shall permit it to stand unattended on a public highway or public vehicular area without first stopping the engine [and] effectively setting the brake...." We cite this statute for the purpose of indicating that due care in the operation of motor vehicles must be exercised in places other than upon public highways. See McCall, supra.
We are persuaded that plaintiff's evidence tending to show that defendant Allison left his loaner car, which he knew to be without an emergency brake, parked with the engine running at a relatively high speed near the place where he was conversing with plaintiff was sufficient to take the case to the jury on the issue of whether defendant Allison was negligent in the operation of his loaner car. We therefore order a new trial as to defendant Allison.
We note at this point that in his Motion for a Directed Verdict, defendant Allison suggests as a grounds that plaintiff did not sue the right person, since the action was brought against defendant Allison, t/d/b/a Allison's Ditching & Septic Tank Service. This position is feckless and we reject it without discussion.
Plaintiff also contends that the trial court erred in granting defendant Paramount Motors' Motion for a Directed Verdict. We disagree. Even if plaintiff's evidence tended to show that Paramount was negligent in loaning a defective or unsafe car to defendant Allison, see Austin v. Austin, 252 N.C. 283, 113 S.E.2d 553 (1960); Stilley v. Automobile Enterprises, 55 N.C.App. 33, 284 S.E.2d 684 (1981), cert. denied, 305 N.C. 307, 290 S.E.2d 708 (1982), there is no evidence that such negligence was a proximate cause of plaintiff's injury. *195 Rather, plaintiff's evidence clearly tends to show that the negligence of defendant Allison in leaving the car unattended with the engine running was the sole proximate cause of plaintiff's injury.
The result is:
As to defendant Paramount Motors,
No Error;
As to defendant Allison,
New Trial.
PHILLIPS and PARKER, JJ., concur.
