Johnson v. Simmons

177 S.E.2d 721 (1970)

10 N.C. App. 113

Edward Forest JOHNSON, By His Next Friend, Edward Daniel Johnson, Now By His Guardian Ad Litem, Doris Blackburn Johnson v. Harold Junior SIMMONS, Tolson and Coleman and Dixie Bedding Company. Edward Daniel JOHNSON, Successor in Interest, Doris Blackburn Johnson v. Harold Junior SIMMONS, Tolson and Coleman and Dixie Bedding Company.

No. 705SC670.

Court of Appeals of North Carolina.

December 16, 1970.

Certiorari Denied February 9, 1971.

*722 Stevens, Burgwin, McGhee & Ryals, by Ellis L. Aycock, Wilmington, for plaintiff appellants.

Marshall, Williams & Gorham, by Lonnie B. Williams; John F. Crossley, James, James & Crossley, by Robert White Johnson, Wilmington, for defendant appellees.

HEDRICK, Judge.

The plaintiffs bring forth and argue a total of twenty assignments of error which may be grouped into three major contentions.

First, the plaintiffs argue that the court committed prejudicial error by failing to instruct the jury with regard to the doctrine of sudden emergency. The court is required to declare the law and apply the evidence thereto in regard to each substantial and essential feature of the case without any request for special instructions. Rodgers v. Thompson, 256 N.C. 265, 123 S.E.2d 785 (1962); Tharpe v. Brewer, 7 N.C.App. 432, 172 S.E.2d 919 (1970). The principle of sudden emergency is not available to one who by his own negligence has brought about or contributed to the emergency. Hoke v. Atlantic Greyhound Corp., 227 N.C. 412, 42 S.E.2d 593 (1947); Rodgers v. Thompson, supra. Applying these principles to the instant case, the court was required to instruct the jury on the doctrine of sudden emergency, even in the absence of special request, only if the evidence disclosed that a sudden emergency did in fact exist and that the plaintiffs did not in any way contribute to it. Hoke v. Greyhound Corp., supra.

The minor plaintiff's testimony in the instant case reveals that when he first observed the defendants' truck it was off the edge of the pavement facing him about a block to a block and a half away and appeared to be completely stopped. He further testified that he saw the truck begin to pull out onto the pavement when he was less than one hundred feet away, and that when he was approximately forty-five *723 feet away the truck entered his lane of travel. Thus, it appears that insofar as the plaintiffs are concerned any sudden emergency which may have existed arose as a result of the minor plaintiff's failure to keep and maintain a proper lookout, and his lack of due care under the circumstances then and there existing.

Next, the plaintiffs contend that the court erred in the admission of certain testimony. An examination of each exception upon which these assignments of error are based reveals that the testimony complained of related to the negligence of the defendant. The jury answered the issue as to the negligence of the defendant in favor of the plaintiffs; therefore, the plaintiffs have not shown any prejudicial error by the admission of the challenged testimony.

Finally, the plaintiffs contend that the court failed to charge the jury that the burden of proof with respect to the issue of contributory negligence was on the defendant. We have carefully reviewed the challenged portion of the charge, and find that the trial judge repeatedly instructed the jury that before they could answer the question of contributory negligence against the plaintiffs, the defendants must satisfy them by the "greater weight of the evidence" that the minor plaintiff was guilty of negligence and that such negligence in one or more respects concurred with the negligence of the defendants as a proximate cause of the injuries to the minor plaintiff.

We have examined and considered all the plaintiffs' assignments of error and find that the plaintiffs had a fair trial in the superior court free from prejudicial error.

No error.

CAMPBELL and BRITT, JJ., concur.