Spencer v. . Brown
198 S.E. 630
N.C.
1938
Check Treatment
"WinboeNE, J.

Defendant’s assignment of error to the failure of the court below to “declare and explain the law arising” upon the evidence offered in support of the various allegations of contributory negligence is well taken, and entitles the defendant to a new trial.

It is the duty of the judge presiding at the trial of an action which is submitted to the jury “to state in a plain and correct manner the evidence given in the case and to declare and explain the law arising thereon.” C. S., 564. This statute “confers upon litigants a substantial legal right and calls for instructions as to the, law upon all substantial features of the case.” Williams v. Coach Co., 197 N. C., 12, 147 S. E., 435, and cases cited. The “requirements are not met by a general statement of legal principles which bear more or less directly, but not with absolute directness, upon the issues made by the evidence. While the manner in which the law shall be applied to the evidence must to an extent be left to the discretion of the judge, he does not perform his duty if he fails to instruct the jury on the different aspects of the evidence and to give the law which is applicable to them, or if he omits from his charge an essential principle of law.” Williams v. Coach Co., supra; Comr. of Banks v. Mills, 202 N. C., 509, 163 S. E., 598; S. v. Bryant, 213 N. C., 752, 197 S. E., 530.

In the instant case, after stating to the jury the correct rule as to the burden of proof on the issue of contributory negligence, and defining contributory negligence and proximate cause in general terms, the court stated the contentions of the defendant as to the manner in which defendant contends that the plaintiff was guilty of negligence which contributed to or concurred in the injuries which he suffered. The counter- *117 contentions of the plaintiff witb respect thereto were then set forth. However, the court, inadvertently no doubt, failed to declare and explain the law arising upon the evidence as it related to the several allegations of defendant involving alleged violations by plaintiff of various sections of the statutes on the operation of motor vehicles in this State. This affected a substantial right of the defendant.

“When a statute appertaining to the matters in controversy provides that certain acts of omission or commission shall or shall not constitute negligence, it is incumbent upon the judge to apply to the various aspects of the evidence such principles of the law of negligence as may be prescribed by statute, as well as those which are established by common law” — Adams, J., in Bowen v. Schnibben, 184 N. C., 248, 251, 114 S. E., 170.

The failure of the court to instruct the jury on substantive features of the case arising on the evidence is prejudicial. This is true even though there is no request for special instruction to that effect. S. v. Bryant, supra, and cases cited.

As the case goes back for new trial for error stated, other exceptions will not be considered.

New trial.