Broadnax v. Deloatch

201 S.E.2d 525 (1974)

20 N.C. App. 430

Irvin A. BROADNAX, Administrator of the Estate of Floyd Boone, Deceased v. Robert Lee DELOATCH.

No. 736SC741.

Court of Appeals of North Carolina.

January 9, 1974.

Certiorari Denied March 5, 1974.

*526 James R. Walker, Jr., for plaintiff appellant.

Charlie D. Clark, Jr., Roanoke Rapids, for defendant appellee.

Certiorari Denied by Supreme Court March 5, 1974.

VAUGHN, Judge.

Plaintiff contends that the charge of the court was erroneous in two respects: (1) the judge restricted the jury findings to *527 those matters specifically alleged in the complaint rather than charging on those issues arising from the evidence and (2) the judge failed to apply the law to the evidence in compliance with G.S. § 1A-1, Rule 51.

Rule 51 requires that the judge "shall declare and explain the law arising on the evidence given in the case." Plaintiff's evidence tends to show that the defendant's car left the road and struck his intestate's parked car, thereby killing his intestate. The instructions contained a summary of the evidence and an explanation of the duty of the defendant to keep a reasonable lookout, the duty to keep his vehicle under proper control, and the essentials of reckless and careless driving. The fact that some of the language of the complaint was used in declaring the law of the case is not error so long as the judge explains all the law arising from the evidence as was done in this case.

In applying the law to the evidence the jury must be given guidance as to what facts, if found by them to be true, would justify them in answering the issues submitted to them in the affirmative or the negative. Credit Co. v. Brown, 10 N.C.App. 382, 178 S.E.2d 649. We hold that the judge's instructions satisfy the basic requirements of the rule. We further hold that when the charge is considered as a whole, the judge's instruction at the very end of the charge to the effect that the fact that an accident has occurred and someone has been injured or killed does not carry a presumption of negligence and the burden of proving negligence remains with the plaintiff, was not prejudicial error requiring a new trial. When the court has sufficiently instructed the jury, if the instructions are not as full as a party desires, he should submit a request for special instructions. Koutsis v. Waddel, 10 N.C.App. 731, 179 S.E.2d 797.

On an earlier appeal, Broadnax v. Deloatch, 8 N.C.App. 620, 175 S.E.2d 314, we held that it was error to grant defendant's motion for nonsuit because the case was one for the jury. The jury has now spoken in a trial which we believe to be without prejudicial error.

No error.

CAMPBELL and PARKER, JJ., concur.