59 N.C. App. 195 | N.C. Ct. App. | 1982
Plaintiffs first assignment of error is in two parts. Plaintiff argues first that the trial court committed prejudicial error by denying plaintiffs motion to amend to conform to the evidence. Although the amendment should have been allowed, denial of the motion does not affect the result we must reach on the appeal. According to G.S. 1A-1, Rule 15(b):
When issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to*197 raise these issues may be made upon motion of any party at any time, either before or after judgment, but failure to so amend does not affect the result of the trial of these issues. (Emphasis added.)
The comment to the statute states that Rule 15(b) deliberately abandons the old code prohibitions against variance between the pleadings and the evidence. Instead, it “lays down a directive based directly upon the truly legitimate policy consideration which should control amendment privilege here, namely, whether, notwithstanding variance of some degree, there has nevertheless been informed consent to try the issues on the evidence presented.”
Rule 15(b) was discussed in Mangum v. Surles, 281 N.C. 91, 187 S.E. 2d 697 (1972). In that case, plaintiffs did not specifically allege fraud in their complaint, but they introduced evidence of fraud at trial. The trial court refused to allow them to amend their complaint to comply with G.S. 1A-1, Rule 9(b). The Supreme Court said:
[WJhere no objection is made to evidence on the ground that it is outside the issues raised by the pleadings, the issue raised by the evidence is nevertheless before the trial court for determination. . . . Failure to make the amendment will not jeopardize a verdict or judgment based upon competent evidence. If an amendment to conform the pleadings to the proof should have been made in order to support the judgment, the Appellate Court will presume it to have been made. However, amendments should always be freely allowed unless some material prejudice is demonstrated. . . .
Mangum v. Surles, 281 N.C. at 98-99, 187 S.E. 2d at 701-702.
Since the evidence of defendant’s speeding in excess of sixty-five miles per hour was admitted at trial, and opposing counsel’s general objection was overruled, the issue of speeding was tried by the implied consent of the parties. As was stated in 1972 North Carolina Case Law Survey, 51 N.C.L. Rev. 989, 1008 (1973):
If opposing counsel fails to object on the proper grounds, a presumption will arise that consent is given to the broadened scope of the trial. Under this presumption all issues raised will be treated as if they were in the pleadings. Professor*198 Moore confirms what the language of 15(b) implies: “Rule 15(b) is not permissive in terms; it provides that issues tried by express or implied consent shall be treated as if raised in the pleadings.”
Once the evidence of speeding was admitted at trial, it became an important factor of the negligence issue. Plaintiff argues that the trial court should have instructed the jury that speeding in excess of fifty-five miles per hour is a violation of G.S. 20441(b) and is negligence per se. We agree.
The court has the duty to charge the jury on the law on the substantial features of the case arising on the evidence and to apply the law to the various factual situations presented by the conflicting evidence. Faeber v. E.C.T. Corporation, 16 N.C. App. 429, 192 S.E. 2d 1 (1972). “In charging the jury in any action governed by these rules, . . . [the judge] shall declare and explain the law arising on the evidence given in the case.” G.S. 1A-1, Rule 51(a).
There was evidence that defendant was driving faster than fifty-five miles per hour. James Daniel Bridges testified that he thought defendant’s car was going “sixty-five, seventy, maybe better.” The evidence indicated a violation of G.S. 20441(b) and constitutes negligence per se although such negligence is not actionable unless it is the proximate cause of the injuries complained of. Davis v. Imes, 13 N.C. App. 521, 186 S.E. 2d 641 (1972).
The judge mentioned Mr. Bridges’ testimony in summarizing the evidence, but he should have also explained to the jury that speeding in excess of fifty-five miles per hour is a violation of G.S. 20441(b), and that it is negligence per se. This was not done.
Defendant supports his contention that the trial judge properly charged the jury on the evidence of speeding with the following excerpts from the trial judge’s charge: “I instruct you that the violation of a statute or motor vehicle traffic law enacted for the public safety is negligence within itself unless the statute provides to the contrary.” The judge stated that plaintiff was contending that defendant was negligent by one or both of the following: “(1) Failed to keep a proper lookout; (2) Drove at a speed greater than was reasonable and prudent under the circumstances then existing.”
Since the jury received incorrect instructions, they had to decide how fast defendant was driving, and then decide if it was unreasonable. Had the correct instructions been given, the jury could have simply determined whether they believed Mr. Bridges’ testimony that defendant was going sixty-five or seventy miles per hour. If they believed Mr. Bridges, then they would have found negligence on the part of defendant. They would not have to decide if defendant was driving reasonably, because speeding is negligence per se. These are two different standards. Consequently, the judge’s erroneous instruction was prejudicial error.
New trial.
