              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA16-324

                                Filed: 6 December 2016

Guilford County, No. 14 CVS 10031

WILLIAM L. DAISY, Plaintiff,

             v.

BEULAH LESTER YOST, Defendant.


      Appeal by Plaintiff from judgment entered 3 September 2015 and order

entered 7 December 2015 by Judge Eric C. Morgan in Guilford County Superior

Court. Heard in the Court of Appeals 20 September 2016.


      Carruthers & Roth, PA., by Richard L. Vanore, Norman F. Klick, Jr., and Mark
      K. York, for the Plaintiff-Appellant.

      Law Office of William T. Corbett, Jr. PLLC, by William T. Corbett, Jr., for the
      Defendant-Appellee.


      DILLON, Judge.


                                     I. Background

      William L. Daisy (“Plaintiff”) and Beulah Lester Yost (“Defendant”) were

involved in an automobile collision in Greensboro. The uncontested evidence at trial

established that the collision occurred as follows: Plaintiff was approaching an

intersection at the posted speed limit intending to continue straight. Defendant was

approaching the same intersection from the opposite direction intending to make a

left-hand turn across Plaintiff’s lane of travel.
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                                       Opinion of the Court



       When Plaintiff arrived at the intersection, his light had turned from green to

yellow. When Defendant arrived at the intersection in her left turn lane, her light

had turned from a flashing yellow arrow to a solid yellow arrow.                     As Plaintiff

proceeded straight through the intersection, Defendant made a left turn across

Plaintiff’s lane of travel, causing the front of Defendant’s turning vehicle to strike the

side of Plaintiff’s vehicle, pushing it into a light post at the corner of the intersection.

       Plaintiff commenced this action against Defendant seeking compensatory

damages for personal injuries and property damage resulting from the collision.1

Plaintiff moved for a directed verdict on the issue of contributory negligence. The

trial court denied the motion and submitted the issue to the jury. The jury returned

a verdict finding that (1) the collision was proximately caused by the negligence of

Defendant, but that (2) Plaintiff was contributorily negligent in causing the collision.

Based on the jury’s verdict, the trial court entered judgment for Defendant. Plaintiff

subsequently filed a motion for judgment notwithstanding the verdict (“JNOV”), and

alternatively, motion for a new trial. The trial court denied Plaintiff’s motion, and

Plaintiff timely appealed.

                                          II. Analysis

       On appeal, Plaintiff makes a number of arguments, including the argument

that there was no evidence to support the jury instruction on the issue of Plaintiff’s


       1 Because the parties stipulated to the amount of damages prior to trial, this issue was not
submitted for determination by the jury.

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                                   Opinion of the Court



contributory negligence. We conclude that the evidence presented at trial was not

sufficient to warrant a jury instruction on the issue of contributory negligence and

therefore reverse the ruling of the trial court on this issue. Based on this conclusion,

we need not address Plaintiff’s remaining arguments.

      Contributory negligence is defined as “negligence on the part of the plaintiff

which joins, simultaneously or successively, with the negligence of the defendant

alleged in the complaint to produce the injury of which the plaintiff complains.”

Jackson v. McBride, 270 N.C. 367, 372, 154 S.E.2d 468, 471 (1967).

      With respect to contributory negligence as a matter of law, “[t]he general rule

is that a directed verdict for [the moving party] on the ground of contributory

negligence may only be granted when the evidence taken in the light most favorable

to [the non-moving party] establishes the [non-moving party’s] negligence so clearly

that no other reasonable inference or conclusion may be drawn therefrom.” Clark v.

Bodycombe, 289 N.C. 246, 251, 221 S.E.2d 506, 510 (1976). “If there is more than a

scintilla of evidence supporting each element of the nonmovant's case, the motion for

directed verdict should be denied.” Whisnant v. Herrera, 166 N.C. App. 719, 722, 603

S.E.2d 847, 850 (2004). The non-moving party must be given “the benefit of every

inference which may reasonably be drawn in [her] favor.” Hicks v. Food Lion, Inc.,

94 N.C. App. 85, 88, 379 S.E.2d 677, 679 (1989).




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                                        Opinion of the Court



       In order to prove contributory negligence on the part of a plaintiff, the

defendant must demonstrate: “(1) [a] want of due care on the part of the plaintiff;

and (2) a proximate connection between the plaintiff’s negligence and the injury.”

West Constr. Co. v. Atlantic Coast Line R.R. Co., 184 N.C. 179, 180, 113 S.E.2d 672,

673 (1922).2 A plaintiff may move for a directed verdict on the issue of contributory

negligence at the close of all the evidence. Hawley v. Cash, 155 N.C. App. 580, 583,

574 S.E.2d 684, 686 (2002). Here, the motion should have been granted if there was

not “more than a scintilla of evidence” supporting each element of Defendant’s claim

that Plaintiff was contributorily negligent. Id.

       In the present case, we conclude that there was not more than a scintilla of

evidence that Plaintiff was contributorily negligent in causing the collision. Plaintiff

testified that he was approximately one-hundred (100) feet from the center of the

intersection and traveling at the posted speed limit of thirty-five (35) miles per hour

when he first noticed Defendant’s vehicle and when his traffic signal changed from

green to yellow. After determining that he could not safely bring his vehicle to a stop

before the light turned red, Plaintiff proceeded through the intersection at thirty-five

(35) miles per hour while his light was still yellow.




       2  Because contributory negligence is an affirmative defense, the burden of proof on the issue
of contributory negligence rests with the defendant. Clary v. Alexander County Bd. Of Ed., 286 N.C.
525, 532, 212 S.E.2d 160, 165 (1975).

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                                   Opinion of the Court



      Defendant did not put on any evidence. On appeal, Defendant points to the

testimony of a witness who was at the accident scene, who stated on cross-

examination that “it seemed like [Plaintiff] was going fast” as evidence of Plaintiff’s

negligence. However, this witness actually testified that she was not looking at the

intersection prior to the collision and “didn’t see [Plaintiff’s] car driving” or “going

into the intersection.” The witness’s statement regarding Plaintiff’s speed was solely

in reference to “the way [Plaintiff’s] car bounced off [the light post]” after Defendant’s

car had collided with Plaintiff’s car. We conclude that the testimony of this witness

does not amount to “more than a scintilla” of evidence showing that Plaintiff was

contributorily negligent in causing the collision.        Even viewed in a light most

favorable to Defendant, Green v. Rouse, 116 N.C. App. 647, 650, 448 S.E.2d 846, 847

(1994), the evidence fails to raise even a “mere conjecture” of contributory negligence

on the part of Plaintiff. See Jones v. Holt, 268 N.C. 381, 384, 150 S.E.2d 759, 762

(1966) (holding that if the evidence “merely raises a conjecture” of contributory

negligence, the issue must not be submitted to the jury).

      In addition, N.C. Gen. Stat. § 20-155(b) provides that “[t]he driver of a vehicle

intending to turn to the left within an intersection . . . shall yield the right-of-way to

any vehicle approaching from the opposite direction which is within the intersection

or so close as to constitute an immediate hazard.” N.C. Gen. Stat. § 20-155(b) (2015).

While Plaintiff certainly had a duty to drive no faster than was safe under the



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                                   Opinion of the Court



circumstances, to keep his vehicle under control, to maintain a reasonably careful

lookout, and to take reasonably prudent steps to avoid a collision, “he [was] entitled

to assume, even to the last moment,” that Defendant, “[would] comply with the

law . . . before entering [Plaintiff’s lane of travel].” Snider v. Dickens, 293 N.C. 356,

358, 237 S.E.2d 832, 834 (1977); see also Penland v. Greene, 289 N.C. 281, 283, 221

S.E.2d 365, 368 (1976) (holding that a person has no duty to anticipate negligence on

the part of others and “has the right to assume and to act on the assumption that

others will observe the rules of the road and obey the law”). The right to rely on this

assumption, though, is not absolute. Id. Where circumstances which exist at the

time are such that a reasonable person would be on notice that he cannot rely on the

assumption that other drivers would yield to his right of way, he is under a duty “to

exercise that care which a reasonably careful and prudent person would exercise

under all the circumstances then existing.” Id. However, here, there is nothing in

the record which suggests that Plaintiff failed to act reasonably in assuming that

Defendant would yield and would not turn her vehicle into his path after he entered

the intersection.

      In conclusion, we find that the evidence at trial was not sufficient to show that

Plaintiff was contributorily negligent in causing the collision. Plaintiff’s motion for

directed verdict should have been granted and the issue of contributory negligence

should not have been submitted to the jury. Therefore, we reverse the judgment of



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                                  Opinion of the Court



the trial court. Further, because the jury determined that Defendant was negligent

in causing Plaintiff’s damages, we direct the trial court on remand to enter judgment

in favor of Plaintiff for the amount of damages already stipulated to by the parties.

      REVERSED AND REMANDED.

      Judges BRYANT and STEPHENS concur.




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