Thе plaintiff testified in substance that, traveling west on the highway out of Shelby, he overtook the defendant’s truck going around “a small curve”; that after nearing the truck and getting in the clear where he could see ahead and “down the hill around three-tenths of a mile,” he gave a signal of his intention to pass by blowing his horn; that as the front end of his car came about opposite the reаr end of the defendant’s truck, the defendant’s driver, without giving any signal of any kind of his intention to turn, suddenly turned to his left and crossed the south half of thе highway immediately in front of plaintiff, and that the collision then ensued.
On the other hand, the defendant offered evidence tending tо show that defendant’s milk delivery truck, having rounded a slight right-hand curve, proceeded on along a straight stretch of road, slightly down hill. The truсk was being operated by its employee, Ray Mock, on a clear day, with visibility good. Mock intended to turn into a driveway on thе left side of the highway to make a delivery of milk at a customer’s house. He testified he looked in his side mirror and could see some 200 or 300 yards to his rear, to the crest of the hill; that there was no trafile behind him to the top of the hill, and that he looked forwаrd and saw none in the straight stretch ahead; that having slowed from 20 to not more than 5 to 10 miles per hour, he angled his truck from his right to his left hand side of the highway, giving a hand signal for a left turn during the last 50 feet traveled before reaching the driveway on his left; that he had completed his turn into the driveway, with all but the bare rear end of his truck clear of the highway, when the plaintiff’s car, coming from the rear, withоut audible signal by horn until the moment of impact, struck the truck at its left rear wheel and body on the extreme south edge of the pаvement. The pavement is about 20 feet wide.
The trial court in charging as to the provisions of Gr.S. 20-154 told the jury in part:
*384 “. . . that any car bеfore stopping, starting or turning from a direct course on the highway was required, first, to ascertain whether any other motor vehiсle or pedestrian was likely to be endangered, ... if another motor vehicle were involved he was required to give his signal by hаnd indicating what his movement was to be by signalling with his hand, except where the rear view was blocked, and in that case by some mechanical device approved by the State Highway & Public Works Commission, and the signalling of the hand as set forth in the statute, indicating . . . а left turn by (extending the left arm and) pointing outward with forefinger, . . . The law requires that that signal be given for at least 100 feet before the course of the driver was changed. The law requires not only that the hand must be extended indicating a turn, but that it must remain during the last 100 feet before the turn was made. A failure to give such signal was negligence per se, that is, negligence as a matter of law. (Italics added)
“. . . The plaintiff in thе instant case contends that there was no hand signal given indicating a turn by Mr. Mock, the defendant contends that there was. .. . And the plaintiff contends that under Mr. Mode’s own testimony, that if you, are satisfied with what he says, that he signaled fifty feet before he made his turn he would be guilty of negligence, and the court so charges you" (Italics added)
The defendant’s exceptions to the foregoing instructions would seem to be well taken.
As pointed out by
Ervin, J.,
in
Cooley v. Baker,
In the instant case it is noted that the trial court gave the jury the unqualified instruction that a failure to give the hand signal during the last 100 feеt before the turn was made “was negligence per se." The court inadvertently failed to qualify the instruction so as to bring it within the purview of the rulе announced in Cooley v. Baker, supra.
Nor did the court at any other time during the charge submit to the jury the defendant’s contention that taking the testimony of truсk driver Mock as true, it was susceptible of the inference that he was under no obligation to give the hand signal. This on the hypothеsis that he, before *385 angling tbe truck to the left across the highway into the driveway, first ascertained that there was no vehicle in sight frоm the rear back to the curve and crest of the hill, a distance of some 200 or 300 yards, and that he, in the exercise of due care and reasonable foresight, had no reasonable ground for apprehending that his intended left turn might affect the operation of another vehicle.
Instead, the court closed this phase of the ease by giving the following erroneous contention of the plaintiff: “And the plaintiff contends that under Mr. Mock’s own testimony, that if you are satisfied with what he says, that he signaled fifty fеet before he made his turn he would be guilty of negligence, and the court so charges you.”
This contention of the plaintiff presented to the jury a view of the law clearly at variance with the foregoing rule laid down in
Cooley v. Baker, supra.
See also
Stovall v. Ragland,
It is the duty of the trial court to explain and apply the law to the substantive phases of the evidence adduced (G.S. 1-180), and an instruction which presents an erronеous view of the law or an incorrect application thereof, even though given in stating the contentions of the pаrties, is error, the rule being that while ordinarily the misstatement of a contention must be brought to the trial court’s attention in apt time, this is nоt necessary when the statement of the contention presents an erroneous view-of the law or an incorrect application of it.
McLean v. McLean,
Here the contention of the plaintiff as given the jury by the trial court was not only erroneous, but the court seems to have adopted it unequivo-cably as the law of the case. Clearly, this was error entitling the defendant to a nеw trial, and it is so ordered.
Since the questions raised by other assignments of error, including the challenge to the charge for failure to comply with the mandatory requirements of G.S. 1-180, may not arise on retrial, we deem it appropriate to refrain from discussing them.
New trial.