Pergerson v. Williams ( 1970 )

176 S.E.2d 885 (1970)

Robert McKindley PERGERSON, Sr., Administrator of the Estate of Robert McKindley Pergerson, Jr.
v.
James WILLIAMS.

No. 7010SC311.

Court of Appeals of North Carolina.

October 21, 1970.

Hubert H. Senter, Franklinton, and Boyce, Mitchell, Burns & Smith, by G. Eugene Boyce, Raleigh, for plaintiff appellant.

Maupin, Taylor & Ellis, by Armistead J. Maupin, Raleigh, for defendant appellee.

PARKER, Judge.

The judgment appealed from recites it was entered under Rule 41(b). Except for dismissal for failure of plaintiff to prosecute or to comply with the rules of civil procedure or an order of court, which are clearly inapplicable here, Rule 41(b) deals with motions for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief in an action tried by the court without a jury. G. S. § 1A-1, Rule 41(b). The present case was tried before judge and jury. Therefore, the reference in the judgment to Rule 41(b) was not appropriate. Federal courts, applying cognate Federal Rules of Civil Procedure, have held that "[w]here a motion for dismissal is made pursuant to Rule 41(b) in a jury case, it may properly be treated as a motion for a directed verdict under Rule 50(a)." Wolf v. Reynolds Electrical & Engineering Co., 304 F.2d 646 (9th Cir. 1962); accord, Sano v. Pennsylvania Railroad Company, 282 F.2d 936 (3rd Cir. 1960); Carroll v. Seaboard Air Line Railroad Company, 371 F.2d 903 (4th Cir. 1967); Cranston Print Works Co. v. Public Service Co. of N. C., 291 F.2d 638 (4th Cir. 1961); see, 2B Barron and Holtzoff, Federal Practice and Procedure, § 1074, p. 371. We shall also treat the judgment of dismissal in the present case as having been entered pursuant to a motion for a directed verdict under Rule 50(a) of the Rules of Civil Procedure.

Rule 50(a) expressly requires that a motion for a directed verdict "shall state the specific grounds therefor." The record before us does not affirmatively disclose that specific grounds were stated for defendant's motion. However, plaintiff did not object at the trial to the failure of defendant to state specific grounds for his motion. "If the court denies a motion for a directed verdict which fails to state the specific grounds for the motion, the moving party may not complain of the denial on appeal. Conversely, if such a motion is granted, the adverse party who did not object to failure of the motion to state specific grounds therefor cannot raise such objection in the appellate court." 2B Barron and Holtzoff, Federal Practice and Procedure, § 1073, p. 370; accord, Cox v. City of Freeman, Missouri, 321 F.2d 887 (8th Cir. 1963). Since the defendant's motion was granted in the present case and plaintiff raised no objection at the trial that specific grounds were not stated for the motion, such an objection will not be considered on this appeal.

In determining the sufficiency of a plaintiff's evidence to withstand a defendant's motion for a directed verdict in a jury case, the trial court and this Court on appeal are guided by the same principles that prevailed under our former procedure with respect to the sufficiency of evidence to withstand a motion for nonsuit under G.S. § 1-183. Sawyer v. Shackleford, 8 N.C.App. 631, 175 S.E.2d 305; Musgrave v. Mutual Savings & Loan Assoc., 8 N.C. App. 385, 174 S.E.2d 820. All evidence which supports plaintiff's claim must be taken as true and considered in the light most favorable to plaintiff, giving to plaintiff the benefit of every reasonable inference which may legitimately be drawn therefrom, and with contradictions, conflicts and inconsistencies being resolved in plaintiff's favor. Bowen v. Gardner, 275 N.C. 363, 168 S.E.2d 47. The question presented by this appeal, therefore, is whether plaintiff's evidence in this case, when so considered, was sufficient to support a jury finding of actionable negligence on the part of defendant. We agree with the trial court's conclusion that it was not.

There was no evidence of excessive speed, or that defendant failed to keep his car under reasonable control, or that he failed to exercise care to avoid hitting the child as soon as he saw him. Defendant did not see the child until immediately prior to the impact. At that instant the child was already directly in front of defendant's car and in defendant's lane of travel. "The boy's head was down under the hood and defendant couldn't tell where the boy was running, but his head was bouncing up and down." It is, of course, possible to conjecture that the child had been visible in or on the side of the street for a sufficient length of time to put a reasonably careful driver on notice of his presence. It is, however, just as reasonable to conjecture that the child had suddenly darted into the street from behind the tree and telephone pole directly into the path of defendant's car. Had that been the case, then even the most careful and attentive driver could not have avoided striking him. On the evidence presented, these matters must forever remain in the realm of conjecture.

The facts here are strikingly similar to the facts in Badger v. Medley, 262 N.C. 742, 138 S.E.2d 401. In that case the Supreme Court, affirming a judgment of nonsuit, said: "Assuming that defendant failed to keep a reasonable lookout, there is not sufficient evidence from which it may be inferred that his inattention was a proximate cause of the accident and that in the exercise of reasonable care he might have avoided the accident."

What was said by Campbell, Judge, in Edens v. Adams, 3 N.C.App. 431, 165 S.E.2d 68, is appropriate here: "A cause of action must be something more than a guess. A resort to a choice of possibilities is guesswork, not decision. To carry the case to the jury, the plaintiffs must offer evidence sufficient to take the case out of the realm of conjecture and into the field of legitimate inference from established facts."

The judgment appealed from is

Affirmed.

CAMPBELL, J., concurs.

VAUGHN, J., dissents.