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Osetek v. Jeremiah11/15/2005
this case in arriving at the amount of damages you award. This is most important because your consideration of such matters would have to be based on speculation, and might well be inaccurate and could result in an injustice to one party or the other. Also, for you to consider or speculate on any matter not in evidence or not reasonable inferred from the evidence in arriving at the amount of damages would be a violation of your oath as a juror, which binds you to follow the law as given you by the Court in arriving at your verdict. The appropriate measure of damages in this case given you by the Court is provided by law, and you should consider this measure only. I instruct you that if you reach this issue, your decision should be based on the evidence and the rules of law I've given you with respect to the measure of damages. You're not required to accept the amounts of damages suggested by the parties or their attorneys. Your award should be fair and just. You should remember that you're not seeking to punish either party and you're not awarding or withholding anything on the basis of sympathy or pity. Finally, as to this second issue [of damages] on which the Plaintiff has the burden of proof, if you find by the greater weight ofthe evidence the amount of actual damages proximately caused by the negligence of Defendant, Jason Lee Jeremiah, then it would be your duty to write that amount in the blank space provided. If, on the other hand, you fail to so find, it would be your duty to write a nominal number, such as one dollar, in the blank space provided.
N.C.P.I. -- Civ. 101.62 (motor veh. vol. 2004)(emphasis added).
Here, the trial court's instructions as to plaintiff's medical treatment and damages were accurate statements of law and were fully supported by the evidence. Moreover, there is nothing to indicate the jury was in any way misled. Therefore, we find the trial court has properly instructed the jury. This assignment of error is overruled.
II. & III.
We combine issues II and III, in which plaintiff challenges the trial court's denial of her motions for judgment notwithstanding the verdict and for a new trial.
Whether to grant or deny a motion for a judgment notwithstanding the verdict or a new trial is within the sound discretion of the trial jury and absent a manifest abuse of discretion, the trial court's ruling will not be disturbed. Fenz v. Davis, 128 N.C. App. 621, 624, 495 S.E.2d 748, 751 (1998); Smith v. Price, 315 N.C. 523, 527, 340 S.E.2d 408, 411 (1986). An assignment of error concerning the signing and entry of a judgment "presents only the question of whether an error of law appears onthe face of the record, which includes whether the facts found or admitted support the judgment and whether the judgment is regular in form." Green v. Maness, 69 N.C. App. 403, 407, 316 S.E.2d 911, 913, disc. rev. denied, 312 N.C. 622, 323 S.E.2d 922 (1984).
Plaintiff argues a new trial is warranted because the instructions as given by the trial court were inadequate and erroneous as a matter of law. Because we have found the trial court properly instructed the jury under the law, this assignment of error is overruled.
IV.
Defendant cross-assigns as error the trial court's granting of plaintiff's motion for directed verdict as to contributory negligence.
A motion for a directed verdict tests the legal sufficiency of the evidence to take the case to the jury and supports a verdict for the plaintiff. Wiggins v. Paramount Motor Sales, Inc., 89 N.C. App. 119, 121, 365 S.E.2d 192, 194 (1988). Where a defendant pleads contributory negligence, "a motion for directed verdict is properly granted a
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