10 N.C. App. 659 | N.C. Ct. App. | 1971
In its first assignment of error, defendant contends that the trial court erred in refusing to grant defendant’s motion for a directed verdict at the close of all the evidence and in refusing to grant defendant’s motion for judgment notwithstanding the verdict or its alternative motion for a new trial for the reason that the evidence offered by plaintiff was not sufficient to be submitted to the jury on the question of defendant’s negligence. Suffice to say, we think plaintiff’s evidence of defendant’s negligence when considered in the light most favorable to him was sufficient to be considered by the jury. Brown v. R. R. Company, and Phillips v. R. R. Company, 276 N.C. 398, 172 S.E. 2d 502 (1970). The assignment of error is overruled.
In its second assignment of error, defendant contends that the trial court erred in its jury instructions to the effect that there were obstructions on defendant’s right-of-way south of the crossing. In summarizing plaintiff’s testimony, the court said:
“That there was an embankment on the right-of-way consisting of dirt and rock; and there was shrubbery about waist high on the top of the embankment; that there were woods along the side of the railroad track right-of-way; that these were average North Carolina woods or trees.”
Again, in that part of the charge on the issue of contributory negligence of plaintiff, the court said:
“The evidence in this case tends to show that the time of the collision was about noon or thereabouts; that there was a drizzling rain; that there was [sic] some obstructions along the right-of-way of the railroad track and the highway, such as an embankment along the track and trees and bushes along the track and highway at the southwest corner of the intersection.”
In Supply Co. v. Rozzell, 235 N.C. 631, 70 S.E. 2d 677 (1952), our Supreme Court said: “The applicable rule of law is, while an inaccurate statement of facts contained in the evidence should be called to the attention of the court in order that the error might be corrected, a statement of a material fact not shown in the evidence constitutes reversible error. (Citations)” In the case of In re Will of Atkinson, 225 N.C. 526, 35 S.E. 2d 638 (1945), the court said: “When the court in its charge submits to the jury for their consideration facts material to the issue, which were no part of the evidence offered, there is prejudicial error.”
In 5A C.J.S., Appeal and Error, § 1766, pp. 1228-29, it is said: “Ordinarily the assumption of a material fact where the evidence with regard to it is conflicting, or where it is unsupported by any evidence, will constitute ground for reversal. * * * An instruction is erroneous and requires reversal where it is likely to mislead the jury into believing that the court had heard and remembered testimony during the trial which they had forgotten.”
We hold that the court’s charge regarding obstructions on the right-of-way was erroneous and we cannot assume that the erroneous instructions did not influence the jury’s decision on the first or second issue. It is true that on the issue of negligence plaintiff was relying primarily if not entirely on the failure of defendant to give reasonable and timely warning as its train approached the crossing; but we think the quoted portions of the charge had the tendency to bolster the plaintiff’s contentions of negligence. In like manner, on the issue of contributory negligence, we think plaintiff’s contentions on that issue were bolstered by the erroneous instructions. We are aware of the line of cases which hold that the duty of the engineer of a train approaching an obstructed highway crossing to give reasonable and timely warning of the approach of the train to the crossing is the same whether the obstructions were erected or allowed by the railroad or someone else. Brown v. R. R. Company, supra; Cox v. Gallamore, 267 N.C. 537, 148 S.E. 2d 616 (1966) ; May v. Southern Ry. Company, 259 N.C. 43, 129 S.E. 2d 624 (1963).
We refrain from discussing the other assignments of error brought forward in defendant’s brief as they might not arise upon a retrial of this case.
New trial.
