Holt v. City of Statesville , 1978 N.C. App. LEXIS 2976 ( 1978 )

ARNOLD, Judge.

By her assignments of error plaintiff contends that the court erred in the following instances:

(1) By allowing the investigating officer to testify that he detected an odor of alcohol on the deceased and that he found a beer bottle next to the vehicle;

(2) By refusing to allow her to testify that while deceased was in hospital he told her that he loved her;

(3) By refusing to allow her testimony that the deceased was in pain;

(4) By refusing to allow her to identify a photograph of deceased and introduce the same as evidence;

(5) By allowing the introduction into evidence of § 20-141(a) through (b)(1) of the General Statutes;

(6) By refusing the testimony of Patricia Millsaps that she did not smell alcohol about deceased; and

(7) By refusing to allow a rebuttal witness for plaintiff to testify about an earlier conversation in which a defense witness said nothing about the deceased’s being at a certain residence and drinking.

We disagree with plaintiff and see no merit in further discussion of these arguments.

The principal question presented by this appeal is whether it was error to grant defendants’ motions for directed verdict. From our vantage it appears that it would have been more prudent in the instant case to have submitted this case to the jury while reserving judgment notwithstanding the verdict. G.S. 1A-1, Rule 50.

After reviewing the evidence in the light most favorable to plaintiff, giving her the benefit of all reasonable inferences to be drawn and resolving contradictions in her favor and considering so much of defendants’ evidence as is favorable to plaintiff, see, e.g. Clark v. Bodycombe, 289 N.C. 246, 221 S.E. 2d 506 (1976), we find that the evidence was sufficient to be submitted to the jury on the issue of defendants’ negligence and that it did not establish contributory negligence as a matter of law.

According to the evidence taken in the light most favorable to plaintiff, the accident occurred on a rainy night at an intersection which was under construction. The pavement was broken with a two-inch drop off from the pavement to gravel which covered the intersection. The manhole cover protruded three inches above the level of the road, and it was in the middle of the road. There were no warning lights or barricades to put motorists on notice of these conditions. Intestate was driving 35 m.p.h. when the accident occurred.

Defendants’ motion for directed verdict was granted on the grounds that plaintiff failed to show actionable negligence, and that the evidence showed contributory negligence as a matter of law. Judgment cannot be sustained on either ground.

Though the evidence surely does not compel such a verdict, there is evidence which would support a finding that defendants were negligent in leaving an exposed manhole in the middle of an intersection without erecting any warning devices to forewarn motorists that the intersection was under construction. Moreover, the record does not clearly show that the intestate had driven through the intérsection just prior to the accident and therefore should have had actual notice that the intersection was under construction. The jury might well find contributory negligence on the part of the intestate, but we cannot say that reasonable minds could reach no other conclusion.

Judgment granting defendants’ motion for directed verdict is

Reversed.

Judges Parker and Martin concur.