Plaintiffs and defendant offered evidence. Defendant assigns as error the denial by the court of his motions for judgments of nonsuit renewed at the close of all the evidence. Defendant also assigns as error the refusal of the trial court to submit an issue as to contributory negligenсe in the case of Rosa Lee Johnson, tendered by him.
Plaintiffs and defendant live in Bolivia, Brunswick County. William King Johnson is the husband of Rosa Lee Johnson, and the father of Efird Johnson. Efird Johnson on 5 June 1957 was five years old.
Plaintiffs’ evidence tends to show the following facts: On 5 June 1957, William King Johnson owned a 1953 Pontiac automobile. The tires on the front wheels were new, the tires on the rear wheels were worn down considerably and slick. About 5:00 o’clock p. m. on that day, William King Johnson was driving his automobile to Wilmington, *800 travelling in a 'northerly direction on Highway #17. His wife was on the front seat, and his son, Bfird, was оn the rear seat. It had been raining, and the hard-surfaced road was wet and slick. He was driving on his right hand side, and approached a long gradual curve. As he entered/ the curve, he slowed his automobile to a speed of about 35 to 40 miles an hour. Just as he began to leavе the curve, his automobile began skidding, skidded about 30 feet, turned around, and stopped on the right side of the road going south. He immediately started down the road to turn, and had travelled about 25 feet, when the front part of an automobile driven by defendant ran into the rear end of his automobile. Defendant’s automobile stopped at the point of impact, and his automobile travelled about 50 feet before it stopped off the highway.
: Defendant’s automobile wa's traveling south on the same highway, and was about 500 yards from William King Johnson’s automobile, when the Johnson automobile began to skid. William King Johnson could see north' along the highway at the point where he started skidding- about three-fourth of a mile, and saw defendant’s approaching automobile,--but he had no opinion as to its speed at the time. Defendant testified: “I wаs not going more than 25 to 30 miles at the time he' spun out in front of me.” Defendant also testified that the Johnson automobile could not have been more than two car lengths in front of him, when it spun out in front of him. During the time William King Johnson’s automobile was skidding, and until the collision occurred, there were no other automobiles between -his automobile and defendant’s automobile. ■
In the collision the front seat of the Johnson automobile was knocked loose, and pushed around toward the dashboard of the automobile. Immediately after the collision Rosа Lee Johnson was between the front and rear seats, and á seat — the record does not state which seat — was pulled off of Efird Johnson, who was unconscious.
Plaintiffs’ evidence, considered in the light most favorable to them,, and considering so much of defendant’s evidence as is favorable to them, and ignoring defendant’s evidence which tends to establish -a ■different state of facts, or which tends to contradict or impeach plaintiffs’ evidence,
Bundy v. Powell,
In respect to the tendered issue of contributory negligence in Rosa Lee Johnson’s case. William King Johnson had owned the automobile about-,two years. He worked in Wilmington, and drove his automobile to and from work. Rosa Lee Johnson testified: “If I had paid any attention I reckon I could have seen the automobile or its condition. I have my every day duties to do. My duty in the house hardly ever, at that time, carried me to duties in the yard. I did not know the tires were slick.” She did not ride in the automobile every day. There is no evidence in the record in either plaintiffs’ or defendant’s evidence tending to-show that Rosa Lee Johnson knew the tires on the rear wheels of the automobile were worn and slick. There is no evidence of excessive speed under the conditions then existing' or of careless and reckless driving of the automobile so far as concerns Rosa Lee Johnson, who did not know the rear tires were slick, of failure of William King John-son to keep a proper lookout, or to have his automobile under control before it startеd skidding. There is no evidence that Rosa Lee Johnson in- the exercise of due care had reasonable ground to believe that the rear tires were worn and slick. There is no evidence of a joint enterprise, or that Rosa Lee Johnson had any control over the automobile owned by her husband which he was driving. She was rh guest in the car. There was no evidence to require the submission of -an‘.-issue of contributory negligence in her case.:
York v. York,
Defendant assigns as error number 22, -based on exception 23, the trial court’s entire charge on the measure of damages on the second issue in Rosa Lee Johnson’.s case, -which reads as follows: “I instruct you, gentlemen, that the rulé for the measure of damages in a case of this kind is that if.'the plaintiff in the Rosa Lee Johnson case,, if the plaintiff is entitled to recover at all, .she is entitled to recover her damagеs, one compensation in a lump sum for all injuries, past, present and prospective, -caused by the defendant’s wrongful and negligent act, embracing loss of time, loss from inability to perform labor and capacity to earn money. The plaintiff would be entitled for reаsohable satisfaction for mental and physical -suffering, if any you find, which were the immediate or necessary result of the consequences of *802 the defendant’s wrongful act. It is for you, the jury, to say under all the circumstances what, is a fair compensation which you have pаid to the plaintiff .now as a cash settlement which would reasonably compensate her for all injuries.”
Defendant contends that the charge was error, in that it permitted the jury to award Rosa Lee Johnson damages for loss of time, inability to-perform labor and capacity to earn money, when there was no evidence as to her age, no evidence that she had ever earned any money, no evidence she had lost any time, and no evidence of her inability to perform her household duties, or to earn money. Defendаnt contends another vice of this part of the charge is that it did not limit her recovery for prospective loss to the present worth of such loss.
■ The substance of Rosa Lee Johnson’s testimony as to her injuries is: Immediately prior to the injury, she had good health. She recеived in the collision a chest injury, and some broken ribs. She spent a night in a hospital. She was bandaged, and given medicine. She wore the bandage steady for three weeks, and off and on. after the three weeks. As a result of her chest injuries, she stayed in bed three weeks in the home of a relative in Wilmington, except to go to a doctor. Her chest felt like it was a tension inside, and hurt terribly for. three weeks, and now sometimes if she works with her hands, it hurts like that. As to her age, her evidence shows she is the mother of - Efir'd Johnson, who on 5 June 1957 was five years old.
By virtue of N.-C.G.S. 52-10 a wifе can sue alone, and is entitled to recover any pecuniary loss for personal injuries sustained by her by reason of a defendant’s actionable negligence “from inability to perform labor or to carry on her household duties,” which recovery “shall be her solе and separate property as fully as if she had remained unmarried.”
Helmstetler v. Power Co.,
In an action for damages for wrongful death, we have held that direct evidence of the earnings of the deceased is not essential.
Hicks v. Love,
■ In 25 C.J.S., Damages, p. 514, it is said: “A person is not deprived of the right to recover damages because of inability to labor or transact business in the future, because of the fact that at the time of the injury he is not engaged in any particular employment. . . . The fact *803 that a woman attends merely to household duties will, not deprive her of a right to recover; for loss of earning capacity.” • •
In
Rodgers v.
Boynton,
Our statute N.C.G.S. 52-10 is in accord with the rеalistic trend of the modern decisions, which, .recognize the fact that a wife, as an individual, has a personal right to work and earn money, whether she is gainfully employed at the time..or engaged merelyvin.the performance of household duties, and where her capаcity .to work and earn money is impaired by injury, she has suffered a definite, substantial • loss. This is particularly true in view of the fact that . married women in increasing numbers are engaging in business pursuits and employments as do men, and like men, whether so employed or not, have a potential capacity to labor and earn money. See Annotation 151 A.L.R., p. 511.
The part of the charge quoted above uses the words “one compenr sation in a lump sum for all injuries, past, present and prospective,” and later the words “paid to the plaintiff now as a сash settlement.” This was intended to mean, and did mean, that the award should represent the present worth or the present cash value of plaintiff’s injuries, past, present and prospective. In the last sentence of this part of the charge the record shows these words “which you have paid to the plaintiff.” It would seem that the correct words would be “which should be paid to the plaintiff,” or words of similar import. However that may be, reading this part of the charge assigned as error number 22 as a whole, we think that the jury was not confused or misled, or thе defendant prejudiced, by the inept words..in the last sentence of this part of the charge, and to award a new trial, or a new trial on the issue of damages alone, because of this last sentence, would be meticulous and finical to an unwarranted degree.
*804
It seems that the essential elements of the measure of damages in
Rosa Lee Johnson’s
case were given. Defendant requested no further instructions as to damages in her case, nor any amplification of the charge on the measure of damages in her case. The awardi of damagеs in her case does not appear excessive. Following our decisions of
Pascal v. Transit Co.,
and
Lambert v. Transit Co.,
All the other assignments of error, except formal ones, are to the charge. All of these assignments of error have been carefully examined, and all are overruled, except assignments of error numbered 24, 25 and 26 in respect to the measure of damages on the second issue in the case оf the infant Efird Johnson.
The infant Efird Johnson’s evidence tends to show that in the collision he sustained a broken leg, and as a result of the fracture one of his legs is now one-half inch shorter than the other. The charge on damages in this case is fatally defective in that nowhere does it limit the infant’s recovery to the present worth of a fair and reasonable compensation for his mental and physical pain and suffering, and for his permanent injuries, if any, resulting in the impairment of his power or ability to earn money after reaching his majority.
Shipp v. Stage Lines,
We percеive no good reason why the infant Efird Johnson should again be put to trial on the first and second issues. The statement of
Walker, J.,
for the Court in
Lumber Co. v. Branch,
In Bosa Lee Johnson’s case, we find no error. In the case of the infant Efird Johnson, a new trial is ordered, limited, however, to the issue of damages.
Rosa Lee Johnson’s Case — No error.
Etfird Johnson’s, an infant, case — Partial new trial.