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Taylor v. Ellerby9/4/2001
Appeal by plaintiff from judgment entered 30 December 1998 by Judge William H. Helms in Anson County Superior Court. Heard in the Court of Appeals 7 June 2001.
Ethel Lee Allen Taylor ("plaintiff") appeals from a judgment entered following a jury trial in which plaintiff alleged she had suffered injuries in an automobile collision caused by the negligence of Annie Mae Ellerby ("defendant"). We find no error.
Plaintiff sets forth three assignments of error, accompanied by three corresponding arguments. First, plaintiff argues that the verdict returned by the jury was against the greater weight of the evidence presented at trial and should be set aside. After the judgment in favor of defendant was entered, plaintiff filed a "Motion for a New Trial" on 21 December 1998, requesting a new trial pursuant to N.C.R. Civ. P. 59 ("Rule 59"). This motion was eventually denied by order entered 9 September 1999 (approximately nine months later). Plaintiff requests that this Court reverse the trial court's order denying her motion for a new trial. It is well-established that a
trial court's decision to exercise its discretion to grant or deny a Rule 59(a)(7) motion for a new trial for insufficiency of the evidence must be based on the greater weight of the evidence as observed firsthand only by the trial court. The test for appellate review of a trial court's granting of a motion for a new trial due to insufficiency of the evidence continues to be simply whether the record affirmatively demonstrates an abuse of discretion by the trial court in doing so. . . . In re Buck, 350 N.C. 621, 629, 516 S.E.2d 858, 863 (1999) (emphasis omitted).
" n appellate court should not disturb a discretionary Rule 59 order unless it is reasonably convinced by the cold record that the trial judge's ruling probably amounted to a substantial miscarriage of justice," Worthington v. Bynum and Cogdell v. Bynum, 305 N.C. 478, 487, 290 S.E.2d 599, 605 (1982), and a "manifest abuse of discretion must be made to appear from the record as a whole with the party alleging the existence of an abuse bearing that heavy burden of proof." Id. at 484-85, 290 S.E.2d at 604. Here, plaintiff bears the "heavy burden" of proving that the trial court abused its discretion by denying plaintiff's motion for a new trial.
Plaintiff specifically argues that in failing to find that plaintiff suffered any injury , the jury returned a verdict that was contrary to all the evidence. We first note that, in fact, the jury did not return a verdict finding "no injury." Rather, the jury found that plaintiff was not injured "as a result of the negligence of the defendant." Thus, even if the evidence overwhelmingly established that plaintiff suffered from some injury, the jury's verdict would not necessarily be contrary to that evidence, since the jury could have concluded that plaintiff suffered injuries that were not caused by defendant's negligence. The issue, then, is whether the trial court's refusal to set aside the jury's verdict amounts to a substantial miscarriage of justice. We believe it does not.
At trial, plaintiff argued that she suffered from neck, back, and knee injuries as a result of the collision. While defendant admitted that she caused the accident by negligently pulling out in front of plaintiff, she specifically denied the existence of proximate cause of plaintiff's injuries and the existence of damages. The evidence presented at trial tended to show that Dr. Victoria Rommel first saw plaintiff as a patient on 12 January 1995, at which time she found that plaintiff was having some lower back pain with some tenderness to the sacroiliac joint. Dr. Rommel also noted that plaintiff, who weighed 2
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