Metcalf v. Foister

Annotate this Case

61 S.E.2d 77 (1950)

232 N.C. 355

METCALF v. FOISTER.

No. 94.

Supreme Court of North Carolina.

September 20, 1950.

*80 Harkins, VanWinkle, Walton & Buck, Kester Walton, all of Asheville, for plaintiff, appellant.

Thomas A. Uzzell, Jr., Harry DuMont, Asheville, for defendant, appellee.

SEAWELL, Justice.

Since we do not find merit in exceptions not herein mentioned, we confine discussion to those most stressed by counsel for the appellant, which involve the contention that the trial court failed to explain the law arising on the evidence as required by G.S. § 1-180. The 1949 amendment to this section, relieving the trial judge of the necessity of restating the evidence except as necessary to the performance of this duty is not, at least directly, involved.

The exceptions designed to present appellant's contention in this regard, as pointed out in his brief, are numbered in assignments of error as 4, 5, and 8, and consist of bracketed portions of the judge's charge reading as follows:

Exception No. 4.

"(C) The plaintiff in this case, Gentlemen of the Jury, invokes the alleged violation by the defendant of statute which provides that an automobile shall be equipped with an efficiently working windshield wiper and also invokes the alleged violation by the defendant of the rule or law which says in effect that pedestrians shall have the right of way, so to speak, in pedestrian lanes when the traffic light is with them. He also invokes the alleged violation by the defendant of his failure to observe the rule of the reasonably prudent man and to keep a lookout in the direction that he is traveling, to see those things that are there for him to see, and to operate his car in consideration and in conformity with the conditions of traffic in the place that he is. (D)."

The assignment of error is as follows: "The Court erred in the above charge for that the Court referred to certain statutes but erroneously stated the provisions of said statutes, and for the further reason that the Court failed to charge the duty of the defendant to the plaintiff, as provided for in G.S. §§ 20-172 through 20-174, and other applicable provisions of the statute." (Italics ours).

Exception No. 5: "(E) If you answer both these features in favor of the plaintiff you have got actionable negligence established, but a finding that he did not have windshield wipers working at that time without a further finding that that was the cause of injury to the plaintiff, as I have defined that to you, would mean that actionable negligence had not been established upon that theory of the case. And, of course, as I say, the plaintiff is invoking these other matters that I have referred to as constituting negligence on the part of the defendant. So you will inquire whether or not the defendant was negligent in any one of the aspects referred to in the evidence and in the Court's charge a moment ago, and if you fail to find, remembering that the burden is upon the plaintiff in this issue, to establish by the greater weight of the evidence that the defendant was negligent, I say if you fail to find that he was negligent in one of those respects, then, of course, the plaintiff could not prevail. (F)"

The assignment of error in this part of the charge is as follows: "Plaintiff excepts and assigns error to that part of the charge above quoted for that the Court failed to apply to the various aspects of the evidence the principles of law of negligence as prescribed by statute."

The exception referred to in assignment of error No. 8 (K to L, R. pp. 67-68) has *81 no relation to the contention under discussion and is, therefore, not copied.

It will be noted that the appellant attempts to raise the question of failure to comply with G.S. § 1-180 by specific exceptions to certain portions of the charge as containing error, with the incidental statement in each connection that the court should have charged so and so, but failed to do so. Not conceding or holding that such vital exception to the charge could be raised by this indirection, we may suppose for the purpose of discussion that the exceptions were validly made, with specific reference to the evidence involved and the explanatory law which it is contended the court failed to give. Supposing this, there are, however, two observations to be made, which taken together, we think, deprive the objection of its validity.

First, a perusal of the whole charge leaves us with the impression that the court adequately dealt with the evidence and applicable law as far as substantial clarification requires, although perhaps not precisely in the manner the plaintiff desired; sufficiently, however, to make any further detail a matter of subordinate elaboration, requiring on the part of the plaintiff a request for special instruction, which was not given. Whiteman v. Seashore Transportation Co., 231 N.C. 701, 58 S.E.2d 752.

Pertinent to this discussion we find in McIntosh, North Carolina Practice and Procedure, Chapter 14, p. 626, the following: "* * * the judge is not required to instruct the jury upon every possible aspect of the evidence, or as to every conceivable inference of fact which might be drawn from it, he should present every substantial and essential feature embraced within the issues and arising upon the evidence; and when this has been done, if the parties desire some subordinate feature to be presented, or a fuller statement, they should ask for such special instructions."

Grant v. Bartlett, 230 N.C. 658, 55 S.E.2d 196; Dulin v. Henderson-Gilmer Co., 192 N.C. 638, 135 S.E. 614, 49 A.L.R. 663; Murphy v. Suncrest Lumber Co., 186 N.C. 746, 120 S.E. 342; Ledford v. Valley River Lumber Co., 183 N.C. 614, 112 S.E. 421; Hill v. North Carolina R. Co., 180 N.C. 490, 105 S.E. 184; Hauser v. Forsyth Furniture Co., 174 N.C. 463, 93 S.E. 961; Cherry v. Atlantic Coast Line R. Co., 186 N.C. 263, 119 S.E. 361; Matthews v. Myatt, 172 N.C. 230, 90 S.E. 150; State v. Merrick, 171 N.C. 788, 88 S.E. 501; McCracken v. Smathers, 119 N.C. 617, 26 S.E. 157; Oates v. Herrin, 197 N.C. 171, 148 S.E. 30; State v. Hendricks, 207 N.C. 873, 178 S.E. 557.

It will be noticed that the objections discussed tend to one common purpose: to invoke laws relating to the rights of the pedestrian upon entering an intersection or marked cross-walk between intersections of streets and highways, and that the cited statutes relate to that subject. Therefore, our second observation is that the plaintiff, in his own evidence, has definitely not placed himself within any position where these statutes might be invoked, or the general laws relating to the right of way of the pedestrian under such circumstances might be available to the plaintiff.

An open space such as Pack Square is of itself hardly an intersection such as is contemplated by the statutes sought to be invoked, and if it were the plaintiff has put himself without the pale of the protection of any marked cross-walk located therein, or other situation giving rise to the implications of the statute sought to be invoked.

We should say here that several of the instructions to which objections have been made and which are not here considered, are pertinent not to the issue of negligence, but that of contributory negligence, and that the jury did not reach that issue. We might observe also that there is some inexactness in the charge to the jury on the first issue. But taking the charge contextually we do not regard it as reversible error. No question but that there was ample evidence to sustain the finding for the plaintiff on the first issue had the jury been so minded, but we cannot find that the failure to do so is attributable to misdirection in the instructions given.

We do not find in the record sufficient reason to disturb the verdict.

No error.