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Hinnant v. Holland12/6/1988
This wrongful death action arose from a one-car accident in which a passenger was killed. From judgment entered on a jury verdict in favor of defendants, plaintiff appeals. For the reasons set out below, we reverse the judgment and remand for a new trial.
I
On 19 December 1985, defendant James Neal Holland ("Neal"), age 16, drove his high school classmates to the home of a needy family to deliver Christmas presents as part of a school project. Neal drove a Chevrolet Blazer owned by his father, the defendant James William Holland. On the trip back to school, Sandra Leigh Hinnant and another student rode with Neal. Sandra sat in the back seat. The Blazer overturned at a curve in the road, and Sandra was killed. The plaintiff, Barney Hinnant ("Sandra's father"), brought this action for wrongful death of his daughter, alleging that Neal's negligence resulted in her death.
The evidence presented at trial showed the following. The accident happened on a clear day on a dry road composed of clay and sand. The road was 20 feet wide, had no shoulders, and was bounded by shallow ditches. The center of the road was hard and compacted; the sides were softer and sandy. No signs warned of the upcoming curve, but Neal's view of it was unobstructed. He drove well within the speed limit of 55 m.p.h., and he applied his brakes when he realized the curve was sharper than he first thought. The right front wheel "locked" in the sand, the Blazer went into a skid and flipped twice. The fiberglass portion of the roof, directly over the backseat, was torn off as the Blazer rolled.
Neal's father testified that, due to its short wheelbase, a Blazer does not "corner" well and is subject to overturning. He also testified that the road was paved the week following the accident. The former testimony of an unavailable witness, to the effect that four accidents had occurred at the same curve in as many years, was excluded as hearsay not within an exception.
Sandra's father appeals from a jury verdict finding Neal not negligent. He assigns error to (1) the denial of his motions for directed verdict and judgment notwithstanding the verdict; (2) the judge's refusal to give certain instructions to the jury; and (3) the admission of testimony on direct examination that Neal had no criminal convictions. Neal makes a cross-assignment of error to the exclusion of the unavailable witness' former testimony. We address these contentions in order.
II
Sandra's father first contends that denial of his motions for directed verdict and judgment notwithstanding the verdict was error, since, he argues, the evidence at trial established Neal's negligence as a matter of law. We disagree.
A motion for directed verdict, like a motion for judgment notwithstanding the verdict, challenges whether evidence presented at trial is legally sufficient to go to the jury. See Taylor v. Walker, 320 N.C. 729, 733, 360 S.E.2d 796, 799 (1987). A directed verdict or judgment notwithstanding the verdict may properly be entered in a negligence action " nly in exceptional cases." Id. at 734, 360 S.E.2d at 799. "Issues arising in negligence cases are ordinarily not susceptible of summary adjudication because application
of the prudent man test . . . is generally for the jury." Id. (citations omitted). Courts are even more reluctant to grant the motion when, as here, the moving party bears the burden of proof.
A party with the burden of proof may be granted a directed verdict "when the credibility of the movant's evidence is manifest as a matter of law." Murdock v. Ratliff,
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