Nance v. Williams

163 S.E.2d 47 (1968)

2 N.C. App. 345

Minnie Bell NANCE, Executrix of the Estate of Frank Mebane Nance, Deceased v. James David WILLIAMS and James Milton Williams.

No. 6817SC323.

Court of Appeals of North Carolina.

September 18, 1968.

*49 Price, Osborne & Johnson, Leaksville, and Gwyn & Gwyn, by Julius J. Gwyn, Reidsville, for plaintiff appellee.

Jordan, Wright, Nichols, Caffrey & Hill, by Karl N. Hill, Jr., Greensboro, for defendants appellants.

BRITT, Judge.

The principal question presented is whether the pleadings and evidence were sufficient to permit a charge to the jury on the violation of G.S. § 20-140, the reckless driving statute.

G.S. § 1-180 requires the judge, in charging a petit jury in a civil or criminal action, to declare and explain the law arising on the evidence given in the case. It is error for the court to charge upon an abstract principle of law which is not presented by the allegations and evidence. Textile Motor Freight, Inc. v. Dubose, 260 N.C. 497, 113 S.E.2d 129; Carswell v. Lackey, 253 N.C. 387, 117 S.E.2d 51; Andrews v. Sprott, 249 N.C. 729, 107 S.E.2d 560. A prime purpose of the charge is to eliminate irrelevant matter or allegations not supported by evidence so that the jury may understand and appreciate the precise facts that are material and determinative. Dunlap v. Lee, 257 N.C. 447, 126 S.E.2d 62, 96 A.L.R.2d 754.

In Roberts v. Pilot Freight Carriers, Inc., 273 N.C. 600, 160 S.E.2d 712, in an opinion by Sharp, J., we find the following:

As we pointed out in Ingle v. Roy Stone Transfer Corp., 271 N.C. 276, 283-284, 156 S.E.2d 265, 271, allegations of reckless driving in the words of G.S. § 20-140, without more, do not justify a charge on reckless driving. To plead reckless driving effectively, a party must allege facts which show that the other was violating specific rules of the road in a criminally negligent manner.

In her complaint, plaintiff's allegations of negligence declare (a) that defendant driver did not keep a proper lookout, (b) that he did not have his automobile under proper control and operated it along a wet highway at an excessive rate of speed, and (c) and (d) that he operated the car in violation of G.S. § 20-140 (setting forth substantially the provisions of the statute).

The evidence in the instant case did not justify instructions relating to a violation of G.S. § 20-140. Plaintiff's evidence, considered in the light most favorable to her, was sufficient to make out a case of actionable negligence but not one of culpable negligence. State v. Cope, 204 N.C. 28, 167 S.E. 456.

In Dunlap v. Lee, supra, the defendant ran into the rear of the plaintiff's car as plaintiff had stopped to allow a vehicle in front of plaintiff to turn off the road. Plaintiff offered no evidence as to the speed of the defendant, while the defendant testified to a speed of 40 miles per hour. The court held that while the fact of a rear-end collision offers some evidence *50 of negligence, it is not sufficient to present the question of defendant's violation of G.S. § 20-140, when the fact of accident is combined only with the failure to keep a proper lookout, and not with excessive speed or following too closely. The evidence of recklessness in the instant case was no stronger than the evidence in Dunlap.

Even if the charge on G.S. § 20-140 had been justified by the allegations and evidence, the instructions were improperly administered in this case. In his charge, the trial judge stated that plaintiff alleged and contended that the defendant driver violated the statute prohibiting reckless driving and then proceeded to give the substance of the statute. He then stated plaintiff's contentions regarding speed greater than was reasonable and prudent under the circumstances and failure of defendant driver to maintain a reasonable and proper lookout and to keep his car under proper control.

The charge then contains the following:

Finally, as to the first issue, I instruct you that if the plaintiff has fulfilled the responsibility cast upon her by the law to the extent that the evidence by its quality and convincing power has satisfied you by its greater weight that at the time and place complained of, the defendant James David Williams was negligent in that he unlawfully or negligently operated a motor vehicle upon a public highway in Rockingham County, North Carolina, carelessly and heedlessly in willful and wanton disregard for the rights and safety of others or in that he drove any vehicle upon a highway in this county without due caution and circumspection and at a speed or in a manner as to endanger or be likely to endanger any person or property or in that he operated said vehicle at the time and place complained of and at a speed which was greater than was reasonable and prudent under the circumstances then and there existing or in that he failed to keep a reasonable lookout or in that he failed to have and keep said automobile under proper control at the time and place complained of; I say that if the plaintiff has proved any of those things and proven it by the greater weight of the evidence and has further proved by the greater weight of the evidence that the negligence of the defendant James David Williams in any one or more of those regards not only existed but that such negligence of the defendant James David Williams was one of the proximate causes of the collision between the automobile then and there operated by him and the farm tractor then and there operated by Frank Mebane Nance, it would be your duty to answer this first issue in the plaintiff's favor or "yes."

In Roberts v. Pilot Freight Carriers, Inc., supra, it is said:

If, however, a party has properly pleaded reckless driving and the judge undertakes to charge upon it, G.S. § 1-180 requires him to tell the jury what facts they might find from the evidence would constitute reckless driving. It is not sufficient for the judge to read the statute and then (as he did here) leave it to the jury to apply the law to the facts and to decide for themselves what defendant's driver did, if anything, which constituted reckless driving.

We hold that neither the pleadings nor the evidence in this case justified instructions on reckless driving. Roberts v. Pilot Freight Carriers, Inc., supra; Ingle v. Roy Stone Transfer Corp., supra; Modern Electric Company v. Dennis, 259 N.C. 354, 130 S.E.2d 547.

Because of prejudicial errors in the charge, there must be a

New Trial.

BROCK and PARKER, JJ., concur.