Bulluck v. Long

124 S.E.2d 716 (1962)

256 N.C. 577

Gertrude BULLUCK v. Herbert LONG.

No. 251.

Supreme Court of North Carolina.

March 28, 1962.

*721 Spruill, Thorp, Trotter & Biggs and Charles T. Lane, Rocky Mount, for Gertrude Bulluck, plaintiff-appellant.

Fountain, Fountain, Bridgers & Horton and George M. Britt, Tarboro, for Herbert Long, defendant-appellee.

PARKER, Justice.

All of the thirteen assignments of error by the appellant Gertrude Bulluck, except two formal ones, relate to the court's charge to the jury. The eleven assignments of error to the charge are that the trial judge failed in his duty, as required by G.S. § 1-180, to relate and apply the law to the variant factual situations having support in the evidence, and they specify wherein they aver these eleven assignments of error fail to comply with the duty imposed on the judge by G.S. § 1-180. For instance, the judge failed to charge that a violation of the provisions of G.S. § 20-141 would constitute negligence per se, and failed to state facts, which if found by the jury from the evidence would constitute a basis for finding the defendant Long guilty of negligence in violating the provisions of the statute; and further that the judge failed to comply with the provisions of G.S. § 1-180 in stating in detail the facts which would constitute a basis for a finding that defendant Long was faced with a sudden emergency and was entitled to the benefit of that doctrine, but neglected to state to the jury facts which would constitute a basis for their finding that defendant Long was not entitled to the benefit of that doctrine; and further that in respect to plaintiff's other allegations of negligence and evidence offered by her in respect thereto, which are specified in the assignments of error, the judge failed to declare and explain the law arising on the evidence in the case, and to explain the application of the law thereto.

The parties waived a recapitulation of the evidence by the court, and the jury was so informed. But, "such waiver did not relieve the court of the duty to declare and explain the law arising on the evidence of the respective parties." Brannon v. Ellis, 240 N.C. 81, 81 S.E.2d 196.

Upon the first issuewas the plaintiff injured by the negligence of the defendant Herbert Long, as alleged in the complaint the trial judge correctly stated the law as to the burden of proof, and gave a general definition of the constituent elements of actionable negligence. He then stated "one act of negligence that the plaintiff complains of is that the defendant was operating his motor vehicle at the time and place in question, it being somewhere around midnight, you will remember the exact time, at a speed greater than that which was reasonable and prudent under the circumstances." He then repeated or read the provisions of G.S. § 20-141 (a) and (c), but he did not instruct the jury that a violation of these parts of the statute, or of either of them, constituted negligence per se, Cassetta v. Compton, 256 N.C. 71, 123 S.E.2d 222, though he did say if one drove at a speed greater than is reasonable and prudent under the existing circumstances, he violated the speed statute. He then briefly stated the contentions of plaintiff and defendant Long as to these provisions of the statute, and immediately thereafter charged as follows: "As to whether the speed that the defendant was driving at that time and place was in excess of the speed which was reasonable and prudent under those conditions is for you to determine, remembering that the burden of proof is upon the plaintiff to satisfy you as to this particular complained act of negligence, that the defendant was negligent in that particular and that such negligence was the proximate cause of the defendant's car striking the Studebaker of the plaintiff's husband on the shoulder of the highway and knocking it into the car in which she was sitting."

*722 The judge then charged as to the duty of a motorist to keep a proper lookout, and a failure to do so is negligence. And then charged that a person driving an automobile is required to keep it under proper control, and if he fails to do so he is guilty of negligence; and then "the third allegation of negligence is that the plaintiff (sic) failed to remain on the hard surface and pulled off onto the dirt shoulder when he saw or, in the exercise of reasonable care, should have seen the two cars and the signal light on the shoulder of the road, and that he also failed to put on brakes and reduce his speed sufficiently to avoid striking the plaintiff after he saw or should have seen the warning light. So you see that these, the third and fourth allegations, have to do with this second one of reasonable lookout and keeping his automobile under proper control." He then stated contentions of the plaintiff and defendant Long in respect to the duty to keep a proper lookout and to keep an automobile under proper control. He next charged, "But, it is for you to determine under the evidence, weighing the evidence carefully and the contentions of both sides carefully, whether under the situation that existed there the defendant was keeping a proper lookout, whether under those conditions he used reasonable care in seeing the cars on the highway and the signal light, and whether he failed to put on brakes and reduce his speed sufficiently to avoid striking the cars on the shoulder of the road, taking into consideration all the facts and circumstances in the case." He then charged "the failure to use brakes when such would have prevented a collision is negligence." He next charged: "Now, these are the particular acts of negligence of which the plaintiff contends, and it is for you to find from the evidence whether the defendant was guilty of one or more of these acts of negligence complained of by the plaintiff, remembering that the burden is upon the plaintiff to satisfy you by the greater weight of the evidence that the defendant was negligent in one or more of these particulars, and that the burden is on the plaintiff further to satisfy you, if you do find by the greater weight of the evidence that the defendant was negligent in one or more of these particulars, you must further find by the greater weight of the evidence that such negligence was the proximate cause of the injury to the plaintiff, as that term has been defined to you."

He then charged the defendant contends he was faced with a sudden emergency with the light being waved before him, and under the circumstances then existing he did what any reasonable man faced with like circumstances would have done, and that he was not negligent. He then gave a special prayer for instructions of defendant Long as to sudden emergency, charged the doctrine of sudden emergency, and charged at length defendant Long's contentions in respect thereto to the effect he was faced with a sudden emergency and was entitled to the benefit of this doctrine. However, the judge gave no contentions of plaintiff in respect to this doctrine.

He then charged again as to burden of proof, the doctrine of sudden emergency, and stated there is no statute or law which prohibits the parking of an automobile on the left shoulder of a highway completely off the traveled portion. He next charged defendant was under a duty to ascertain his position on the highway and to know where he was, irrespective of any assumption he might have had as to where another automobile was, and instructed the jury where a motorist is unable to see ahead of him, it is his duty to reduce his speed in accord with his ability to see, and it is his duty to stop if necessary.

He concluded his charge on the first issue in these words: "Now, gentlemen, summarizing with respect to that issue, if you find from the evidence and by its greater weight that the defendant was negligent in one or more of the particulars alleged, and that such negligence was the proximate cause of the plaintiff's injuries, then it would be your duty to answer the first issue Yes. If you fail to so find, then it would be your duty to answer that issue No."

*723 In respect to the defendant Long's alleged violation of the provisions of G.S. § 20-141 (a) and (c), the trial judge did not charge the jury that a violation of these parts of the statute, or either of them, was negligence per se, and his charge contains no formula or rule to aid the jury in determining which of the circumstances in respect thereto would or would not constitute negligence. The judge simply charged in respect to these provisions of the statute as to the plaintiff's contention that certain facts would make the speed at which defendant was driving his automobile in excess of what was reasonable and prudent under the circumstances then existing, and the defendant's contention that other facts would not, and that it was for the jury to determine whether the defendant was driving at that time and place at a speed in excess of what was reasonable and prudent under the conditions; but without appropriate instructions how could the jury know whether the facts as found did or did not amount to negligence as defined by the statute.

In respect to the part of the charge as to a sudden emergency, the judge stated the defendant contends he was faced with a sudden emergency with the light being waved before him, gave a special prayer for instructions of defendant Long as to sudden emergency, stated the doctrine of sudden emergency, and charged at length defendant Long's contentions in respect thereto, and his contention that he was entitled to the benefit of this doctrine. The judge gave no contention of plaintiff in respect to this doctrine, and did not declare and explain the law arising upon plaintiff's evidence in respect to this doctrine.

A reading of the charge as a whole leads us to the conclusion that the judge did not declare, explain, and apply the law to the evidence bearing on the substantial and essential features of the case.

The provisions of G.S. § 1-180 require that the trial judge in his charge to the jury "shall declare and explain the law arising on the evidence given in the case," and unless this mandatory provision of the statute is observed "there can be no assurance that the verdict represents a finding by the jury under the law and on the evidence presented." Smith v. Kappas, 219 N.C. 850, 15 S.E.2d 375. A bare declaration of the law in general terms and a statement of the contentions of the parties are not sufficient to meet the statutory requirement. Glenn v. Raleigh, 246 N.C. 469, 98 S.E.2d 913; Hawkins v. Simpson, 237 N.C. 155, 74 S.E.2d 331, where 14 of our cases to that effect are cited.

This Court said in Lewis v. Watson, 229 N.C. 20, 47 S.E.2d 484: "The judge must declare and explain the law `as it relates to the various aspects of the testimony offered.' Smith v. Kappas, supra. By this it is meant that the statute requires the judge `to explain the law of the case, to point out the essentials to be proved on the one side or the other, and to bring into view the relations of the particular evidence adduced to the particular issues involved.' 53 Am.Jur., Trial, section 509."

The chief purpose of a charge is to aid the jury to understand clearly the case and arrive at a correct verdict. For this reason, the Court has consistently held that G.S. § 1-180 confers a substantial legal right, and imposes upon the trial judge a positive duty, and his failure to charge the law on the substantial features of the case arising on the evidence is prejudicial error, and this is true even without prayer for special instructions. Westmoreland v. Gregory, 255 N.C. 172, 120 S.E.2d 523; Lewis v. Watson, supra; Smith v. Kappas, supra. In the charge here most of the evidence was stated in the contentions of the parties. Where no evidence is stated except in the contentions of the parties that does not meet the requirements of G.S. § 1-180. Brannon v. Ellis, supra, and the cases there cited.

When the charge given to the jury in the court below is scrutinized in the light *724 of these principles, it is indisputably clear that the trial judge failed to declare and explain the law arising upon the evidence given in this case, and that the plaintiff is entitled to a new trial of her action against defendant Long, and it is so ordered.

New trial for plaintiff.

SHARP, J., took no part in the consideration or decision of this case.