HENNIS FREIGHT LINES INC. v. Burlington Mills Corp.

97 S.E.2d 850 (1957)

246 N.C. 143

HENNIS FREIGHT LINES, Inc. v. BURLINGTON MILLS CORPORATION and J. O. Caudle. Paul BROOKS v. BURLINGTON MILLS CORPORATION and J. O. Caudle.

No. 386.

Supreme Court of North Carolina.

May 1, 1957.

*853 Deal, Hutchins & Minor, Winston-Salem, for plaintiffs, appellants.

Womble, Carlyle, Sandridge & Rice, Winston-Salem, for defendants, appellees.

JOHNSON, Justice.

The appeal rests on Exception No. 8, which is: "The plaintiffs except to the charge because the Court failed to declare and explain the law arising on the evidence given in the case in that the Court failed to declare and failed to explain the principles of last clear chance or discovered peril as such principles related to the first issue."

The exception is without merit. The doctrine of last clear chance was not germane to the first issue.

The doctrine of last clear chance presupposes negligence on the part of the injured person, and has no application on his behalf unless he is chargeable with contributory negligence which would preclude a recovery in the absence of the doctrine. Dowdy v. Southern R. Co., 237 N.C. 519, 75 S.E.2d 639; Mount Olive Mfg. Co. v. Atlantic Coast Line R. Co., 233 N.C. 661, 65 S.E.2d 379; 38 Am.Jur., Negligence, Sec. 217; 65 C.J.S. Negligence § 137 b, p. 762. Here the doctrine of last clear chance was relevant only to the third issue. In charging on that issue the trial judge gave the jury an exhaustive explanation of the principles governing the doctrine and its application.

It is noted that the language of Exception No. 8 limits its challenge to the failure of the court "to declare" and "to explain the principles of last clear chance or discovered peril as such principles related to the first issue." However, the plaintiffs in their Assignment of Error No. 8, based on Exception No. 8, make this further challenge to the charge: "The grounds for this assignment of error are that the main element of negligence alleged against the defendants by the plaintiffs in their respective complaints were that the tractor of Hennis Freight Lines, which was being driven by Paul Brooks, skidded without fault on his part; continued to skid down a long hill; that the defendant J. O. Caudle saw the truck skidding, realized that it could not be stopped; that he had ample time to avoid a collision, and failed to do so, and that such conduct on his part was negligent. The Court wholly failed to charge the jury as to this primary element in the plaintiffs' cause of action as alleged in the complaint."

*854 The foregoing contention is further amplified in the plaintiffs' brief in gist as follows: that the defendant Caudle, being under the duty of exercising due care in maintaining a lookout and in controlling his vehicle, was charged with knowledge that the plaintiff's tractor as it skidded down the hill, without fault on the part of its driver, was creating a situation of imminent danger, calculated to result in a collision, which the defendant Caudle in the exercise of due care could and should have avoided; that the conduct of the defendant Caudle in failing to avert the danger and prevent the collision by the exercise of due care in maintaining a lookout and in controlling his vehicle was primary negligence on his part bearing directly on the first issue; and that the judge failed to explain the principles of law involving such primary negligence and failed to apply such principles to the first issue, in violation of G.S. § 1-180.

It may be doubted that the foregoing amplified challenges to the charge are supported by Exception No. 8. An assignment of error must be based on an exception duly noted and may not present by amplification a question not embraced in the exception. See Waddell v. Carson, 245 N.C. 669, 97 S.E.2d 222; Suits v. Old Equity Life Ins. Co., 241 N.C. 483, 85 S.E.2d 602. However, conceding arguendo that the amplified challenges are supported by the exception, we conclude that they are without merit.

The record discloses that after the trial judge read all the issues to the jury, he then explained, without special reference to either of the issues, the general principles of law arising upon the issues, viz.: actionable negligence, contributory negligence, the doctrine of last clear chance, the doctrine of sudden peril, and various highway safety statutes: G.S. §§ 20-140, 20-141, 20-146 and 20-148.

The trial judge also in his general charge told the jury "that the mere fact that a motor vehicle may skid on a public highway is not, of itself, negligence in the operation of the vehicle. * * * (and) therefore * * * that the fact, if it is a fact, that plaintiffs' truck skidded down this hill is not, in itself and standing alone, sufficient to make plaintiffs guilty of contributory negligence or of negligence."

In explaining the application of G.S. § 20-148, entitled "Meeting of vehicles," the judge told the jury: "A person operating a motor vehicle then has the right to act upon the assumption that every other person whom he meets operating another vehicle upon the public highways will also exercise ordinary care and caution according to the circumstances and he will not negligently or recklessly expose himself to danger, but, rather, make an attempt to avoid it. But when the operator, * * * of a motor vehicle upon the public highway has had time to realize, or by the exercise of proper care and watchfulness should realize, that a person whom he meets upon the public highway is in a somewhat helpless condition, or apparently unable to avoid the approaching motor vehicle, he must exercise increased exertion to avoid a collision."

The trial judge also explained to the jury the principles of common law negligence based on failure of a motorist to exercise due care in maintaining a lookout and in keeping his vehicle under proper control.

When the judge came to charge specifically on the first issue, he gave a detailed statement of the plaintiffs' contentions. These may be summarized as follows: (1) that the plaintiff's tractor went into an uncontrollable skid without fault of the driver; (2) that the defendant's driver saw or should have seen the plaintiff's tractor skidding for 800 feet or more and knew, or should have known, it could not be stopped; (3) that the defendant's driver could and should have turned to the right on the shoulder of the road or stopped; (4) that he failed to do either; (5) that in so failing he was negligent in not keeping a proper lookout, *855 (6) in not reducing speed, (7) in not keeping the vehicle under proper control, (8) in failing to yield the plaintiffs onehalf the main traveled portion of the highway, and (9) in cutting across the highway to the left. There was no request for additional instructions as to contentions.

The judge in concluding his charge on the first issue told the jury in substance they should answer the first issue "yes" if they found the plaintiffs' injuries and damage to have been proximately caused by negligence of the defendant Burlington Mills' driver in that: (1) he drove the tractor-trailer upon the left hand side of the highway, in the direction he was traveling, unless it was impracticable to travel on the right hand side of the highway, in violation of General Statutes, § 20-146; or (2), if he in operating the tractor-trailer met the plaintiff's tractor proceeding in the opposite direction, and failed to yield at least one-half, as nearly as possible, of the main-traveled portion of the highway, in violation of General Statutes, § 20-148; or (3), if he operated the tractor-trailer upon the highway without keeping a reasonable lookout; or (4), if he operated the vehicle upon the highway without keeping it under proper control. The judge had previously explained to the jury a motorist's common law duties of proper control and reasonable lookout and what amounts to negligence in respect thereto.

It thus appears that the judge's charge on the first issue presented to the jury all substantive phases of the law of negligence relied on by the plaintiffs that arose upon the evidence. A party desiring instructions upon a subordinate feature of the case must aptly tender a request therefor. Peek v. Wachovia Bank & Trust Co., 242 N.C. 1, 86 S.E.2d 745; Chestnut v. Sutton, 207 N.C. 256, 176 S.E. 743. Here there was no request for more specific instructions.

The plaintiffs' other assignments of error are without merit. They present no new questions requiring discussion. Prejudicial error has not been made to appear. The verdict and judgment will be upheld.

No error.

DENNY, J., took no part in the consideration or decision of this case.