Gathings v. Sehorn

121 S.E.2d 873 (1961)

255 N.C. 503

Lawrence GATHINGS v. John Henry SEHORN.

No. 163.

Supreme Court of North Carolina.

October 11, 1961.

*875 Dolley & DuBose, Gastonia, for plaintiff appellant.

Hollowell & Stott, Gastonia, for defendant appellee.

WINBORNE, Chief Justice.

The plaintiff contends that the judge below committed prejudicial error in his charge to the jury in that he included the plaintiff's requested instruction on the issue of contributory negligence in the portion of his charge relative to the first issue, or defendant's negligence. This, the plaintiff contends, confused and misled the jury.

We cannot agree with this contention. The record reveals that the trial judge did explain a portion of the law relative to contributory negligence while discussing negligence, but the record also reveals that the judge made it clear to the jury that he was at that moment discussing "contributory negligence, which I will come to in the next issue." As this Court has often stated: "The charge is sufficient if, when read contextually, it clearly appears that the law of the case was presented to the jury in such manner as to leave no reasonable cause to believe that it was misled or misinformed with respect thereto." In re Will of Crawford, 246 N.C. 322, 98 S.E.2d 29, 32; Barnes v. Caulbourne, 240 N.C. 721, 83 S.E.2d 898; Vincent v. Woody, 238 N.C. 118, 76 S.E.2d 356.

Plaintiff further assigns as prejudicial error the failure of the judge to charge the jury with reference to G.S. § 20-174(e) which provides that, "every driver of a [motor] vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, and shall give warning by sounding the horn when necessary."

However, as was indicated in Lewis v. Watson, 229 N.C. 20, 47 S.E.2d 484, this section of G.S. § 20-174 states the common law rule of negligence. Since the jury found that defendant was negligent, failure to charge specifically on this statute would not be prejudicial to plaintiff.

Finally, plaintiff contends that the court erred by submitting the question of contributory negligence to the jury. We find no merit in this contention.

In Kellogg v. Thomas, 244 N.C. 722, 94 S.E.2d 903, the facts were similar to those in the instant case. In that case the trial court held the plaintiff-workman guilty of contributory negligence as a matter of law and granted nonsuit. On appeal, this Court, speaking through Parker, J., outlined the rights and duties of a workman working upon a highway, and held that the issue of contributory negligence should have been submitted to the jury. In the present case the issue of contributory negligence was submitted to the jury, there being sufficient *876 evidence to justify a finding either for or against plaintiff. Since the jury found that plaintiff was guilty of contributory negligence, it would seem that plaintiff has had his day in court.

The case was fairly tried; the jury received proper instructions and rendered its verdict against plaintiff. We find no prejudicial error.

No error.