250 N.C. 179 | N.C. | 1959
The appellants, Charlie William Honeycutt and Charles York, and each of them, by assignments of error based upon exceptions duly taken present two questions: (1) Did the trial court err in denying their motions for judgment as of nonsuit on the ground that plaintiff by her own negligence contributed to her injury and damage as alleged in the answer as a matter of law?
And (2) if not, did the court err in failing to charge the jury in conformity with the provisions of G.S. 1-180 in manner stated?
The first assignment of error merits a negative answer on the authority of Burchette v. Distributing Co., 243 N.C. 120, 90 S.E. 2d 232, where this Court interpreted Chapter 1145 of 1953 Session Laws amending G.S. 20-141 (e), the speed law, by adding thereto the proviso: “That the failure or inability of a motor vehicle operator who is operating such vehicle within the maximum sjpeed limits described by G.S. 20-141 (b) to stop such vehicle within the radius of the lights thereof or within the range of his vision shall not be considered negligence per se or contributory negligence per se in any civil action, but the facts relating thereto may be considered with other facts in such action in determining the negligence or contributory negligence of such operator.”
Therefore, in the light of the. testimony of plaintiff hereinabove quoted, tested by the provisions of the amendatory act as so interpreted, the issue of contributory negligence of plaintiff was one for the jury in the instant case. This principle is followed in Wilson v. Webster, 247 N.C. 393, 100 S.E. 2d 829; Hutchins v. Corbett, 248 N.C. 422, 103 S.E. 2d 497.
Now in respect to assignments of error Numbers 4, 5, 6, 7, 8 and 9, based on exceptions of like numbers to the charge, a reading of the charge in the light of decided cases leads to the conclusion that prejudicial error appears. Chambers v. Allen, 233 N.C. 195, 63 S.E. 2d 212; Glenn v. Raleigh, 246 N.C. 469, 98 S.E. 2d, 913, and cases cited, and numerous others.
In Assignment 4, Exception 4, for example, it is pointed out that “the court in charging the jury with reference to issues of negligence, erred in that, in all of its statements of principles of law, the -court stated the principles of law in general terms and thereafter merely •stated to the jury some of the testimony and some of the contentions of the parties and failed and neglected to state to -the jury the application of the .principles of law as -to -the facts arising from the evidence or any of the several possible findings of fact by the jury, and thereby failed to declare and explain the law arising on the evidence given in the case as required by G.S. 1-180.” The other assignments in this aspect are of similar import.
In the Chambers case, supra' the Court said: “Nowhere in the charge did the court explain the law applicable to the evidence upon which the defendants’ contentions were based, should the jury find the facts from the evidence to be as contended for by them. Such
Plence the Court is constrained to hold/ that for error in the charge in respects pointed out, defendants appellants are entitled to a new trial, and it is so ordered.
New Trial.
