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Osetek v. Jeremiah8/16/2005
nce 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 against 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 jury instruction. Radford v. Norris, 74 N.C. App. 87, 88, 327 S.E.2d620,621, 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.
Judges HUNTER and JACKSON concur.
Report per Rule 30(e).
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