Powell v. Clark

122 S.E.2d 706 (1961)

255 N.C. 707

Will L. POWELL, Plaintiff, v. Ernest Oliver CLARK and wife, Mary Powell Clark, Defendants.

No. 318.

Supreme Court of North Carolina.

November 22, 1961.

*707 John H. McMurray, Morganton, for plaintiff, appellee.

Patton & Ervin, Morganton, for defendants, appellants.

BOBBITT, Justice.

This Court is of opinion that the evidence, when considered in the light most favorable to plaintiff, was sufficient to require submission of the case to the jury. Hence, the assignment of error directed to denial of defendants' motion for judgment of nonsuit is overruled. Since a new trial is awarded for reasons stated below, we refrain from a discussion of the evidence presently before us. Tucker v. Moorefield, 250 N.C. 340, 108 S.E.2d 637.

The court instructed the jury, inter alia, that the law "requires that an automobile shall be operated upon the right half of the highway" and "provides that an automobile shall not be operated on the open highway at a speed in excess of 55 miles per hour."

In final instructions on the first issue, the court said: "The plaintiff has the affirmative and positive burden of tipping the scales of your minds in his favor; that is, showing by the greater weight of the evidence that in the operation of the car, either in exceeding the 55 miles per hour speed limit, or in driving at a speed which was greater than was reasonable and prudent under the conditions *708 then existing, or that in operating it, she did so in a reckless and heedless manner, at a speed and in a manner so as to endanger, or be likely to endanger, human life and property, or that she drove the car on the wrong side of the road, that is, did not drive it on the right of the paved portion of the highway, or that she failed to keep a lookout her eyes in front and watching the road, and in doing so, violated the rule of the reasonably prudent person, the court instructing you if he has proven any one of those things and proven it by the greater weight of the evidence and has further proven that that was the reasonthe direct and immediate cause of injury to the plaintiff, then he would be entitled to prevail in this issue and you would answer that question we are discussing `Yes.'" (Our italics.)

Lowman testified that, in his opinion, the 1960 Pontiac "was running around 55 to 60 an hour" when it left the road. He testified further that, when it left the road, "it was going a little faster" than when he first observed it "because it's a downhill grade and naturally it would be picking up a little speed." There was no other evidence as to speed.

Lowman's testimony, taken in the light most favorable to plaintiff, amounts to no more than in his opinion the speed was 55 miles per hour. Mitchell v. Melts, 220 N.C. 793, 801, 18 S.E.2d 406; Hinson v. Dawson, 241 N.C. 714, 721, 86 S.E.2d 585, 50 A.L.R.2d 333. Hence, there was no evidence upon which the jury could base a finding that the 1960 Pontiac was being operated at a speed in excess of 55 miles per hour in violation of G.S. § 20-141(b), subd. 4.

As indicated above, the court instructed the jury that, if they found from the evidence and by its greater weight that the feme defendant "drove the car on the wrong side of the road, that is, did not drive it on the right of the paved portion of the highway," such conduct would constitute negligence.

G.S. § 20-146, referred to in the complaint, is inapplicable to the factual situation under consideration. Its purpose is the protection of occupants of other vehicles then using the public highway and pedestrians and property thereon. Here, there is no evidence that any other vehicle or person or property upon the public highway was in any way involved.

Unquestionably, the 1960 Pontiac proceeded some distance on the driver's left half of the highway. While they did not offer evidence, defendants alleged that, when the feme defendant was operating the 1960 Pontiac at a speed of approximately 40 to 45 miles per hour, the car suddenly became difficult to steer, began to pull sharply to the left, would not respond to the steering wheel, continued to pull to the left and left the road.

The gist of plaintiff's case is that the driver of the 1960 Pontiac, by reason of her negligence, lost control of the car and thereafter the car crossed her left half of the highway and went off the highway and down the embankment. If she lost control of the 1960 Pontiac, by reason of her own negligence or otherwise, the fact that the car went off the left rather than the right side of the road was not a proximate cause of plaintiff's injuries. Under the circumstances, the court's said instruction, apparently based on G.S. § 20-146, was erroneous. A safety statute, such as G.S. § 20-146, is pertinent when, and only when, there is evidence tending to show a violation thereof proximately caused the alleged injuries. Farfour v. Fahad, 214 N.C. 281, 199 S.E. 521.

"It is established by our decisions that an instruction about a material matter, not based on sufficient evidence, is erroneous. (Citations) And it is an established rule of trial procedure with us that an abstract proposition of law not pointing to the facts of the case at hand and not pertinent thereto should not be given to the jury. (Citations.)" Childress v. Johnson Motor Lines, 235 N.C. 522, 530, 70 S.E.2d 558, 564; McGinnis v. Robinson, 252 N.C. 574, 578, 114 S.E.2d 365. We are constrained to hold *709 that the instructions discussed above, in relation to the present factual situation, were erroneous and prejudicial. See Lookabill v. Regan, 245 N.C. 500, 96 S.E.2d 421, and McGinnis v. Robinson, supra.

The questions raised by defendants' other assignments of error may not recur upon a new trial. Hence, particular consideration thereof upon the present record is deemed inappropriate.

New trial.