                                       NO. COA14-459

                      NORTH CAROLINA COURT OF APPEALS

                             Filed: 2 December 2014


GLENN R. WILMOTH,

Plaintiff,

    v.                                           Surry County
                                                 No. 11 CVS 533
GILBERT W. HEMRIC and
VAN W. HEMRIC,

Defendants.



    Appeal by defendants from judgment entered 18 December 2013

by Judge A. Robinson Hassell in Surry County Superior Court.

Heard in the Court of Appeals 5 November 2014.


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

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


    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
                                         -2-
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 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.
                                    -3-
      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 and/or livestock had roamed from the pasture.”

      At   trial,    and   after   plaintiff     presented    all    of    his

evidence, defendants made a motion for a directed verdict, which

was denied by the trial court.            Defendants thereafter presented

evidence, and Larry Chappell testified that defendants employed

him   during   the   summer   of   2008    to   check   cattle.      The   two

particular cows subject to this action were kept in the Kirk

Pasture.    Among his duties, Chappell visited the Kirk pasture

twice a week to check the fences, count the cows,                 and record

his results in a book (the book).          At some point in July 2008 he
                                           -4-
discovered that two cows were missing, but Chappell could not

recall when in July this had occurred.                         He testified that he

recorded the exact date in the book but threw it away after he

stopped    working    in    the     Kirk    Pasture      and    well    before      he   had

knowledge of plaintiff’s injuries or plaintiff’s complaint.

      A   day   after      noticing       that    the    two    cows    were       missing,

Chappell    reported       that    information      to    defendant          Van   Hemrick.

Defendant Van Hemrick testified that Chappell notified him about

the missing cows before 21 July 2008, but he could not recall

the specific day.

      At the close of all the evidence, defendants renewed, and

the trial court once again denied, their motion for a directed

verdict.     The jury found that plaintiff was injured as a result

of defendants’ negligence.               Pursuant to the jury’s determination

of   damages,   the     trial      court       ordered    that    plaintiff         recover

$350,000 from defendants             with interest         at the legal            rate of

eight     percent    per    annum.         Defendants      moved       for    a    judgment

notwithstanding the verdict, which the trial court denied.

                                         II. Analysis

      Defendants      argue       that   the     trial   court     erred      in    denying

their motion for a directed verdict because plaintiff failed to
                                     -5-
present   sufficient      evidence    to   establish    that    defendants’

negligence caused plaintiff’s injuries.          We agree.

    “The standard of review of directed verdict is whether the

evidence, taken in the light most favorable to the non-moving

party, is sufficient as a matter of law to be submitted to the

jury.” Davis v. Dennis Lilly Co., 330 N.C. 314, 322, 411 S.E.2d

133, 138 (1991) (citing Kelly v. Int’l Harvester Co., 278 N.C.

153, 179 S.E.2d 396 (1971)).

          In   determining  the   sufficiency  of   the
          evidence to withstand a       motion for a
          directed verdict, all of the evidence which
          supports the non-movant’s claim must be
          taken as true and considered in the light
          most favorable to the non-movant, giving the
          non-movant the benefit of every reasonable
          inference which may legitimately be drawn
          therefrom   and   resolving   contradictions,
          conflicts, and inconsistencies in the non-
          movant’s favor.

Turner v. Duke Univ., 325 N.C. 152, 158, 381 S.E.2d 706, 710

(1989).

    Generally, a negligence recovery requires proof of a legal

obligation, a breach of that obligation, proximate cause, and

actual damages.     Little v. Omega Meats I, Inc., 171 N.C. App.

583, 586, 615 S.E.2d 45, 48, aff'd, 360 N.C. 164, 622 S.E.2d 494

(2005).    Within   the    specific    context    of   an    animal   owner’s

liability for negligence:
                                    -6-
           The liability of the owner of animals for
           permitting   them   to  escape   upon   public
           highways,   in   case  they   do   damage   to
           travelers or others lawfully thereon, rests
           upon the question whether the keeper is
           guilty of negligence in permitting them to
           escape. In such case the same rule in regard
           to what is and what is not negligence
           obtains as ordinarily in other situations.
           It is the legal duty of a person having
           charge of animals to exercise ordinary care
           and the foresight of a prudent person in
           keeping them in restraint.

Gardner v. Black, 217 N.C. 573, 576, 9 S.E.2d 10, 11 (1940).

Importantly,   a   plaintiff     must   present   evidence   sufficient    to

indicate   that    defendant’s    animals    “were   at   large   with    his

knowledge and consent, or at his will, or that their escape was

due to any negligence on his part.”         Id. at 577, 9 S.E.2d at 12.

    Here, plaintiff did not offer evidence sufficient to show

that the cow escaped due to defendants’ negligence (failure to

maintain an adequate fence, leaving a gate open, counting the

cows too infrequently, etc.).             Rather, plaintiff’s theory of

liability at trial was that defendants acted negligently based

upon their failure to sufficiently look for the cows once they

learned or should have learned that the cows had escaped.

    Thus, the dispositive issue is whether plaintiff presented

sufficient evidence for the jury to infer that before the time

of plaintiff’s injury, defendants knew or should have known that
                                       -7-
the    cows    were    missing.       This    knowledge     was        a    necessary

prerequisite      to    establish      defendants’   duty     to           engage    in

reasonable measures to locate the cows.            See id.

       The evidence taken in the light most favorable to plaintiff

shows the following: Chappell checked the pasture on a Tuesday

and Thursday each week and remembered a time in July 2008 when

he realized that two cows were missing.              A day later, Chappell

reported that information to defendants.                 Defendant Van Hemric

recalled Chappell notifying him about the missing cows before

having a phone conversation            with   plaintiff on        21       July 2008,

which was twelve days after plaintiff sustained his injuries.

However, neither defendants nor Chappell recalled the exact day

in July that Chappell discovered the cows were missing.                           Thus,

whether defendants’ alleged negligent conduct (their failure to

properly      search    for   the     cows)   occurred     before           or    after

plaintiff’s injury is a matter of pure speculation.

       We also note that although plaintiff saw the two cows in

his sister’s garden on 9 July 2008 between 4:30 p.m. and 5:30

p.m., and again at the time of his injury between 8:30 p.m. and

8:45 p.m., such evidence by itself only shows that the cows

escaped, not that defendants knew or should have known that the

cows   escaped,    especially       because   Chappell    conducted         his     cow-
                                                     -8-
count    on    Tuesdays         and       Thursdays,         and       9    July    2008    was   on    a

Wednesday.

       We     therefore        hold       that       no    sufficient         evidence       at   trial

showed that defendants had violated a duty of care to search for

the cows at the time of plaintiff’s injury.                                  Plaintiff failed to

establish that defendants knew or should have known that the

cows had escaped before the time of his injury.                                       See Ingold v.

Carolina Power & Light Co., 11 N.C. App. 253, 259, 181 S.E.2d

173,    176    (1971)        (“Evidence          which       does      no    more     than    raise    a

possibility           or    conjecture          of    a     fact       is    not     sufficient        to

withstand         a        motion     .     .    .         for     a       directed        verdict.”).

Accordingly, the trial court erred by denying defendants’ motion

for a directed verdict.

                                          III. Conclusion

       In sum, we reverse the trial court’s denial of defendants’

motion      for       a    directed       verdict         and    vacate       the    trial     court’s

judgment.

       Reversed and vacated.

       Judges ERVIN and DAVIS concur.
