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Osetek v. Jeremiah11/15/2005
gainst the defendant where the defendant fails to present more than a scintilla of evidence in support of each element of his defense." Snead v. Holloman, 101 N.C. App. 462, 464, 400 S.E.2d 91, 92 (1991). Evidence which merely raises a conjecture as to plaintiff's negligence will not support a juryinstruction. Radford v. Norris, 74 N.C. App. 87, 88, 327 S.E.2d 620,621, disc. rev. denied, 314 N.C. 117, 332 S.E.2d 483 (1985) (citation omitted).
In the instant case, plaintiff testified, "I drove through the parking lot to the exit that goes out to 64 because that would be how I go home. I stopped at the stop sign. I was turned left watching for traffic to clear. It was pretty busy, because it was lunchtime. And I was hit." Plaintiff further testified she had been stopped for "a good while" before she was hit. Defendant admitted he did not know what plaintiff was doing because he was looking to his left while driving straight ahead. On cross- examination, defendant stated that had he been looking straight, before starting to move forward, he could have seen plaintiff's stopped car. Defendant failed to offer any evidence to show plaintiff was negligent. Therefore the trial court's ruling on plaintiff's motion for directed verdict as to contributory negligence was proper. See Maye v. Gottlieb, 125 N.C. App. 728, 482 S.E.2d 750 (1997) (affirming the trial court's directed verdict in favor of plaintiff where "defendants have failed to provide more that a scintilla of evidence supporting plaintiff's contributory negligence"). This assignment of error is overruled.
Affirm.
Judge JACKSON concurs. Judge HUNTER concurs in part, dissents in part.
HUNTER, Judge, concurring in part, dissenting in part.
Although I concur with the majority's holding as to defendant's cross-assignment of error of the trial court's grant of plaintiff's motion for directed verdict, I respectfully dissent from the majority's holding as to the trial court's failure to give plaintiff's requested jury instructions. Based on this Court's ruling in the case of Griffis v. Lazarovich, 161 N.C. App. 434, 588 S.E.2d 918 (2003), disc. review denied, 358 N.C. 375, 598 S.E.2d 135 (2004), I would hold that the trial court erred in failing to give the requested instruction as to the mandatory presumption on the issue of medical damages.
Plaintiff contends that N.C. Gen. Stat. § 8-58.1 creates a mandatory presumption on the issue of the amount of medical damages, and that N.C. Gen. Stat. § 8C-1, Rule 301 requires the court to give such an instruction upon request. I agree. N.C. Gen. Stat. § 8-58.1 (2003) sets out that:
Whenever an issue of hospital, medical, dental, pharmaceutical, or funeral charges arises in any civil proceeding, the injured party or his guardian, administrator, or executor is competent to give evidence regarding the amount of such charges, provided that records or copies of such charges accompany such testimony. The testimony of such a person establishes a rebuttable presumption of the reasonableness of the amount of the charges.
Id. Rule 301 states: "When the burden of producing evidence to meet a presumption is satisfied, the court must instruct the jury that it may, but is not required to, infer the existence of the presumed fact from the proved fact." N.C. Gen. Stat. § 8C-1, Rule 301 (2003) (emphasis added).
It is the trial court's duty to instruct the jury as to the burden of proof upon each issue arising upon the pleadings. King v. Bass, 273 N.C. 353, 354, 160 S.E.2d 97, 98 (1968). "'"'It is said that "'the rule as to the burden of proof is important and indispensable in the administration of justice. It constitutes a substan
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