Prevette v. Bullis

183 S.E.2d 810 (1971)

12 N.C. App. 552

Helen Roland PREVETTE v. Harold Dean BULLIS.

No. 7123SC499.

Court of Appeals of North Carolina.

October 20, 1971.

*811 Brewer & Bryan by Joe O. Brewer, Wilkesboro, and Moore & Rousseau, by Larry S. Moore, North Wilkesboro, for plaintiff appellant.

Hayes & Hayes, by Kyle Hayes, North Wilkesboro, for defendant appellee.

GRAHAM, Judge.

Through her first assignment of error plaintiff contends that the court erroneously charged the jury on the doctrine of sudden emergency. The charge on sudden emergency related only to the issue of defendant's negligence. That issue was answered in plaintiff's favor. Consequently, error, if any, in portions of the charge pertinent only to that issue is harmless. Key v. Merritt-Holland Welding Supplies, 273 N.C. 609, 160 S.E.2d 687; Wooten v. Cagle, 268 N.C. 366, 150 S.E.2d 738.

Plaintiff next contends that the fact she permitted her car to stall for lack of gasoline did not constitute evidence of negligence on her part. She therefore says it was error for the court to charge the jury with respect to this evidence and as to defendant's contentions relating thereto.

It is the duty of a motorist operating a motor vehicle on a public highway to exercise reasonable care to see that it is in reasonably good condition and properly equipped, so that it may not become a source of danger to its occupants or to other travelers. Scott v. Clark, 261 N.C. 102, 134 S.E.2d 181, Huddy, The Law of Automobiles, Vol. 3-4, § 71, p. 127. A disabled vehicle stalled on the traveled portion of a public highway is a well recognized hazard to the motoring public. Certainly it cannot be held, as a matter of law, that the plaintiff here was under no duty to anticipate and provide against the contingency that her car would stall for lack of gasoline and thereby become a dangerous obstruction to traffic. See: Keller v. Breneman, 153 Wash. 208, 279 P. 588, 67 A.L.R. 92; Chapin v. Stickel, 173 Wash. 174, 22 P.2d 290; Casey v. Gritsch, 1 Cal. App. 2d 206, 36 P.2d 696.

We hold that the court properly permitted the jury to consider the evidence that plaintiff permitted her car to run out of gasoline and stall on the highway in determining the issue of contributory negligence.

In her third assignment of error plaintiff questions the court's failure to charge on the essential elements of G.S. § 20-161. That statute prohibits parking or leaving a vehicle standing, under certain specified circumstances, on the traveled portion of a highway. It is applicable only to highways "outside of a business or residence district." Here there was no evidence that the collision, which occurred inside the Town of Wilkesboro, occurred outside of a business or residential district. The trial judge therefore correctly did not apply any of the provisions of that statute to the facts of this case. This would seem to have inured to plaintiff's benefit because a violation of the statute is negligence per se, Hughes v. Vestal, 264 N.C. 500, 142 S.E.2d 361, and defendant had pleaded plaintiff's violation of the statute as a bar to her claim. An appellant may not complain of a trial court's ruling which is favorable to him. Simpson v. Wood, 260 N.C. 157, 132 S.E.2d 369; Midgett v. Midgett, 5 N.C.App. 74, 168 S.E.2d 53.

Plaintiff asserts that the court failed to explain the law arising on the evidence as required by G.S. § 1A-1, Rule 51. A review of the charge in its entirety fails to disclose any prejudicial error in this respect. If a more thorough or more detailed charge was desired it was incumbent upon plaintiff to request it. G.S. § 1A-1, *812 Rule 51(b); Woods v. Roadway Express, Inc., 223 N.C. 269, 25 S.E.2d 856; Jackson v. Jones, 2 N.C.App. 441, 163 S.E.2d 31.

Plaintiff's final assignments of error are directed to the court's refusal to grant her motions for judgment N.O.V. and to set aside the verdict as contrary to the weight of the evidence. These assignments of error are overruled.

No error.

BROCK and VAUGHN, JJ., concur.