Lookabill v. Regan

96 S.E.2d 421 (1957)

245 N.C. 500

Mrs. John LOOKABILL, Administratrix of Ruth L. Workman, deceased, v. Henry G. REGAN.

No. 382.

Supreme Court of North Carolina.

February 1, 1957.

Deal, Hutchins & Minor, Winston-Salem, for defendant-appellant.

Philip R. Craver, Charles W. Mauze, Lexington, for plaintiff-appellee.

*422 WINBORNE, Chief Justice.

Defendant appellant in brief filed here presents seven questions based upon exceptions taken upon the trial below, and to the charge of the court to the jury.

Among these, assignment of error Number Ten based upon exception Nineteen challenged, and we hold properly so, the correctness of a portion of the charge. The case on appeal discloses that here apparently the provisions of the statute G.S. § 20-149, pertaining to the duty of the driver of any vehicle overtaking another vehicle proceeding in the same direction, to pass at least two feet to the left thereof was confused with the provisions of the statute G.S. § 20-148 prescribing the respective duties of drivers of vehicles proceeding in opposite directions when meeting to pass each other to the right,each giving to the other at least one-half of the main traveled portion of the roadway as nearly as possible. For the provisions of G.S. § 20-149 are inapplicable to factual situation in hand.

In this connection, counsel for appellee in brief filed in this Court frankly concede "that the words `yielding two feet to the vehicle to the left' were an inadvertent misstatement on the part of the trial judge." But they contend that this was not reversible or prejudicial error for that: (1) The misstatement was immediately followed by a correct statement of the rules; (2) "The misstatement was a misstatement of a contention"; and (3) "a misstatement of a contention should have been called immediately to the court's attention." Even so ordinarily,this Court is constrained to hold that the error thus appearing entitled defendant to a new trial. For, as stated by Johnson, J., in Blanton v. Carolina Dairy, Inc., 238 N.C. 382, 77 S.E.2d 922, 925, "It is the duty of the trial court to explain and apply the law to the substantive phases of the evidence adduced, G.S. § 1-180, and an instruction which presents an erroneous view of the law or an incorrect application thereof, even though given in stating the contentions of the parties, is error, the rule being that while ordinarily the misstatement of a contention must be brought to the trial court's attention in apt time, this is not necessary when the statement of the contention presents an erroneous view of the law or an incorrect application of it,' citing cases. See also Hartley v. Smith, 239 N.C. 170, 79 S.E.2d 767; McKinney v. City of High Point, 239 N.C. 232, 79 S.E.2d 730; Harris v. White Construction Co., 240 N.C. 556, 82 S.E.2d 689; Caudle v. Southern R. Co., 242 N.C. 466, 88 S.E.2d 138.

As matters to which other assignments of error relate may not recur upon another trial, the Court refrains from discussion of them for fear that prejudice may result.

For error pointed out, let there be a new trial.

JOHNSON, J., not sitting.