Estate of Gosnell ex rel. Leake v. Gosnell ( 1988 )

ORR, Judge.

On a motion for directed verdict we must consider the evidence in the light most favorable to the non-moving party.

This means that the evidence in favor of the non-movant must be taken as true, resolving all conflicts in the non-mov-ant’s favor and entitling him to the benefit of all reasonable inferences. . . . The motion should be denied if there is ‘any evidence more than a scintilla’ sufficient to support plaintiffs’ prima facie case.

Rice v. Wood, 82 N.C. App. 318, 323, 346 S.E. 2d 205, 208, disc. rev. denied, 318 N.C. 417, 349 S.E. 2d 599 (1986) (citations omitted).

Here the evidence tends to show that Angeline had reason to believe Clayton would be armed that night. At trial Angeline, herself, testified that she knew Clayton was “carrying a gun for me and Betty.” On the previous Friday Clayton stopped Betty Jean and her boyfriend in the middle of the road, threatened them at gunpoint, struck the boyfriend in the face and fired a shot from his pistol.

Viewing the evidence, as we must, in the light most favorable to appellant, we are forced to conclude that more than a scintilla of evidence supports appellant’s prima facie case. A reasonable jury could find that Angeline initiated the gun battle and could have reasonably foreseen that Clayton would return fire endangering the lives of innocent bystanders.

Admittedly, Angeline Dillard’s testimony of what took place that night is substantially different from Clayton Gosnell’s. Credibility of witnesses, however, is for the jury to decide and not the trial court. In Fowler-Barham Ford v. Insurance Co. and Fowler v. Insurance Co., 45 N.C. App. 625, 263 S.E. 2d 825, disc. rev. denied, 300 N.C. 372, 267 S.E. 2d 675 (1980), this Court stated that:

it is the established policy of this State — declared in both the Constitution and the statutes — that the credibility of testimony is for the jury, not the court, and that a genuine issue of fact must be tried by a jury unless the right is waived.

45 N.C. App. at 628, 263 S.E. 2d at 827.

We believe a genuine issue of fact exists as to whether Angeline Dillard initiated the gun battle and whether her actions constituted a proximate cause of her daughter’s death. We vacate the directed verdict entered by the trial court and remand for a trial on the merits.

Vacated and remanded.

Judges Johnson and Phillips concur.