Prevatte v. Cabble

BROCK, Chief Judge. The sole assignment of error challenges the granting of defendants’ motion for directed verdict. It is plaintiff’s contention that evidence of the plea of guilty to the offense of driving an automobile at a speed greater than reasonable or prudent is, when taken with physical facts of the evidence, enough to withstand the motion. In four cases involving two car collisions in which the basic issue was in whose lane the collision occurred, the Supreme Court established certain principles which we find applicable. In Dixon v. Edwards, 265 N.C. 470, 144 S.E. 2d 408, two cars [526] collided on an unpaved road, and defendant was charged with driving a ear at a speed greater than was reasonable under the circumstances. The plaintiff’s evidence consisted of the testimony of an expert witness who examined the automobiles sixteen days after the collision. Based on his observations, and in response to hypothetical questions propounded over objection, the expert laid the blame for the collision on the defendant’s negligence. The court found that no inference could reasonably be drawn from this testimony that the defendant’s car was being driven left of the center of the road and stated that defendant’s motion for nonsuit should have been allowed. In Parker v. Flythe, 256 N.C. 548, 124 S.E. 2d 530, plaintiff alleged that defendant drove his car across the center line and collided with plaintiff’s intestate’s car. Plaintiff introduced evidence concerning the relative position of the cars but was unable to offer additional evidence. The court held that this evidence did not permit a reasonable inference of negligence on the part of defendant and affirmed the judgment of nonsuit as to defendant. In a more recent case, Lyle v. Thurman, 11 N.C. App. 586, 181 S.E. 2d 813, this Court reached the same result when the plaintiff’s evidence failed to indicate how the collision occurred or who was at fault. A judgment of involuntary nonsuit was also affirmed in Boyd v. Harper, 250 N.C. 334, 108 S.E. 2d 598, when plaintiff could not show, other than by inference, that his intestate died because of the negligence of defendant. However, the court stated that “direct evidence of negligence is not required, but the same may be inferred from attendant facts and circumstances.” 250 N.C. at 339. We do not believe, therefore, that eyewitness testimony is essential in a case involving a two-car collision. In our opinion the case at bar is distinguishable from the cases cited above, and the evidence, which is much stronger here, is sufficient to support a reasonable inference that defendant Earlie Cabbie was negligent in crossing the center line of the road and that his negligence was a proximate cause of the collision. It is clear that when a defendant moves for a directed verdict under Rule 50(a) of the North Carolina Rules of Civil Procedure, the trial court must consider all the evidence in the light most favorable to the plaintiff. “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). [527] We believe that, in this case, the evidence justifies a reasonable inference that defendant was negligent and that his negligence was a proximate cause of the collision. In our opinion this is not a case in which reasonable and prudent men, in the exercise of impartial judgment, would reach but one conclusion that there was no evidence of actionable negligence. Therefore, the granting of the directed verdict as to defendant Earlie Cabbie was error. However, because there was no evidence that the car driven by defendant Earlie Cabbie either was owned by defendant Leroy Cabbie or was registered in his name, the granting of the directed verdict in favor of defendant Leroy Cabbie was proper. Affirmed as to defendant Leroy Cabbie. New trial as to defendant Earlie Cabbie. Judges Britt and Clark concur.