Comer ex rel. Comer v. Cain, No. 7020SC337

No. 7020SC337 | N.C. Ct. App. | Jul 15, 1970

BRITT, J.

Plaintiff’s two assignments of error are to portions of the trial judge’s jury instructions relating to the issue of contributory negligence.

First, plaintiff contends that the court committed prejudicial error by failing to give equal stress to the contentions of plaintiff on the issue of contributory negligence, in contravention of Rule 51(a) of the Rules of Civil Procedure. We do not think this assignment of error has sufficient merit to justify a new trial, therefore, it is overruled. It is well-settled in this jurisdiction that the trial court is not required to state the contentions of the parties, but when it undertakes to state the contentions of one party upon a particular phase of the case, it is incumbent upon the court to give the opposing contentions of the adverse party upon the same aspect; however, it is not required that the statement of such contentions be of equal length. 7 Strong, N.C. Index 2d, Trial, § 24, p. 336. Although in the instant case the trial court used more words to state defendants’ contentions on the issue of contributory negligence, we think the court sufficiently stated plaintiff’s contentions on the issue.

In his second assignment of error, plaintiff contends the trial court erroneously instructed the jury that plaintiff’s mere presence on the race track, if a proximate cause of the accident, was sufficient to permit a finding of contributory negligence. The pertinent portion of the charge which is the subject of this assignment of error is as follows:

“Therefore, I charge you that if the defendant has satisfied you from the evidence and by its greater weight that on this occasion the plaintiff Bruce Comer was negligent in one or more of those respects, that is that he went out on the track, that he rode on the tow car and knew it was approaching, and that thereafter he failed to keep a proper lookout, or failed to exercise due care for his own safety, and not only that he was negligent in one or more of those respects, but that his negligence was one of the proximate causes of the resulting collision with the trailer and his injury, if the defendant has so satisfied you from’ the evidence and by its greater weight, it would be your duty to answer the second issue YES * * (Emphasis added.)

We do not agree with the construction placed by plaintiff on the quoted portion of the charge. The quoted portion follows a paragraph in which the court stated defendants’ contentions on the second issue, and after reviewing the evidence pertinent to defendants’ contentions stated: ■“* * * and his [plaintiff’s] actions in not keeping a proper lookout, not exercising due care for his own safety were negligence, and that his negligence was one of the proximate causes of the resulting collision and injury to the plaintiff.” When the instruction quoted above is considered together with the instruction immediately preceding it, we ■ think the court made it clear that if plaintiff were guilty of contributory negligence it was in failing to keep a proper lookout or failing to exercise due care for his own safety. We also think that the word “thereafter” emphasized above is significant in that it separated a ■ statement of something that plaintiff did- — -“went out on the track * * * rode on the tow car and knew it was approaching” — from a statement of two acts or omissions that would constitute contributory negligence. We hold that plaintiff was not prejudiced by this portion of the charge and the assignment of error relating thereto is overruled.

Although defendants’ brief indicates that defendants timely moved for a directed verdict, the disallowance of such motion or motions, if made, is not before us and we do not pass upon the sufficiency of the evidence to make out a case of negligence against the defendants or the showing of contributory negligence on the part of plaintiff as a matter of law.

No error.

BROCK and Hedrick, JJ., concur.