Samuel v. Evans

141 S.E.2d 627 (1965)

264 N.C. 393

Robert William SAMUEL v. Nick EVANS. John C. COOPER, v. Nick EVANS, Original Defendant, and Robert William Samuel, Additional Defendant.

No. 703.

Supreme Court of North Carolina.

May 5, 1965.

*629 Boyan & Wilson, High Point, for Robert William Samuel, plaintiff, appellant.

Morgan, Byerly, Post & Keziah, High Point, for John C. Cooper, plaintiff, appellant.

Haworth, Riggs, Kuhn & Haworth, High Point, for Nick Evans, defendant, appellee.

PER CURIAM:

Both plaintiffs assign as error the denial of plaintiff Samuel's motion to dismiss original defendant Evans' cross action for contribution against him as additional defendant. The ruling of the court was obviously correct. Samuel's testimony that he approached and entered the intersection at 40 MPH and that, after seeing Evans stopped at the intersection, he traveled 100 feet without again observing the Evans car tended to establish, on the part of Samuel, concurring negligence which was a proximate cause of the collision. The materiality of this challenged ruling, however, is not apparent, since the jury's answer to the fourth issue exonerated defendant Evans of liability.

Plaintiffs took seven exceptions to his Honor's charge. Only one, however, is assigned as error in compliance with Rule 21 of the Rules of Practice in the Supreme Court. When an exception relates to the charge, that portion to which the exception is taken must be set out in the particular assignment of error. A mere reference to the exception number and the page number of the record where the exception appearsplaintiffs' procedure herewill not present the alleged error for review. Pratt v. Bishop, 257 N.C. 486, 499, 126 S.E.2d 597, 607; Darden v. Bone, 254 N.C. 599, 601, 119 S.E.2d 634, 636; E. L. Lowie & Co. v. Atkins, 245 N.C. 98, 95 S.E.2d 271. The requirements of the rules and the reasons therefor have been so often reiterated that the recurring necessity for restatement baffles our understanding. We refer counsel specifically to State v. Dishman, 249 N.C. 759, 761, 107 S.E.2d 750, 751; accord, State v. Wilson, 263 N.C. 533, 139 S.E.2d 736.

In view of the outcome of this case we have examined each exception taken, and we have found each to be without merit. During the course of this examination, however, we have noted that throughout the charge the judge treated the right of plaintiff Cooper to recover from defendant Evans as being synonymous with the right of plaintiff Samuel. The jury was not instructed that, if negligence on the part of both Samuel and Evans concurred in proximately causing the collision and injury to *630 Cooper, he, a guest passenger, was not barred by his driver's contributory negligence, but was entitled to recover from Evans, the joint tort-feasor whom he had elected to sue. Caulder v. Gresham, 224 N.C. 402, 30 S.E.2d 312. But no exception challenges the omission of the court to charge on this aspect of the case. Rigsbee v. Perkins, 242 N.C. 502, 87 S.E.2d 926, and the jury's verdict has established, in effect, that the negligence of Samuel was the sole proximate cause of the collision. The assignments of error point out no reversible error. The rules of practice in this Court are mandatory. Walter Corporation v. Gilliam, 260 N.C. 211, 213, 132 S.E.2d 313, 315.

No error.