Vann v. Hayes

147 S.E.2d 186 (1966)

266 N.C. 713

Raymond Louis VANN v. Vanilla HAYES, Administratrix of the Estate of Billy Ray Hayes, Deceased, Carolyn Ruth Hayes, Timothy Murphy and William Thomas Murphy.

No. 191.

Supreme Court of North Carolina.

March 23, 1966.

*187 George Rountree, III, Rountree & Clark, Elbert A. Brown, Wilmington, for plaintiff appellee.

W. G. Smith, Wilmington, for defendants appellants.

PLESS, Justice.

The court charged the jury "if you find from the evidence and by its greater weight, the burden being upon the plaintiff, that the defendant, Billy Ray Hayes, stopped the automobile he was driving on the hard surface, or main traveled portion of the road without first ascertaining the same could be done with safety to others then and there present and being upon said highway, that would constitute negligence, and if you find from the evidence and by its greater weight, that the defendant Hayes was negligent in this respect, and you further find by the greater weight of the evidence that such negligence was a proximate cause of injury to the plaintiff, if any you find he sustained, you would answer the first issue `yes'." Previously the court had read N.C.G.S. § 20-154 and the quoted portion of the charge was referring to the provisions of that statute.

Since there was no evidence as to when the car had been stopped nor the conditions under which it was stopped, this portion of the charge is subject to a valid exception for the reason that it was purely conjectural. There was no evidence to justify or support the quoted instructions, and "[a]n instruction about a material matter not based on sufficient evidence is erroneous. In other words, it is error to charge on an abstract principle of law not raised by proper pleading and not supported by any view of the evidence." Dunlap v. Lee, 257 N.C. 447, 126 S.E.2d 62, 96 A.L.R. 2d 754. Our Court has said "it is an established rule of trial procedure with us that an abstract proposition of law not pointing to the facts of the case at hand and not pertinent thereto should not be given to the jury" and "* * * an instruction about a material matter, not based on sufficient evidence, is erroneous." Childress v. Johnson Motor Lines, 235 N.C. 522, 70 S.E.2d 558 and many cases therein cited. "An instruction not based on evidence is erroneous in that it introduces before the jury facts not presented thereby, and is well calculated to induce them to suppose that such state of facts in the opinion of the Court is possible under the evidence and may be considered by them." 53 Am.Jur. § 579, pp. 455-456.

The Court further charged: "* * (I)f you find from the evidence and by its greater weight that the defendant Billy Ray Hayes, operated a 1961 Chevrolet automobile upon the highway in the nighttime without lights in violation of General Statute 20-124, such would constitute negligence, and if you further find from the evidence and by its greater weight that his negligence in this respect was a proximate cause of the collision and resulting injury to the plaintiff, if any he sustained, you would answer the first issue `yes'."

*188 The record contains no evidence of Billy Ray's operating the car in the nighttime, so this too, is an abstract proposition of law not supported by any view of the evidence.

The court also charged that during night hours "there shall be displayed upon such vehicle one or more lamps projecting a white or amber light visible under ordinary atmospheric conditions from a distance of 500 feet from the front of such vehicle, and projecting a red light visible under like conditions from a distance of 500 feet from the rear, except that local authorities may provide by ordinance that no lights need be displayed upon any such vehicle when parked in accordance with local ordinances upon a highway where there is sufficient light to reveal any person from a distance of 200 feet upon such highway."

The plaintiff had offered only negative testimony with regard to lights on the car; that is, the witness Jerry Newkirk, over the objections of the defendants Hayes, testified that he did not see any lights on the Hayes car but he also testified that if they were on he didn't see them, that he only saw the Hayes car for about 20 seconds while he was 200 yards away, that he could not see the road in front of the Hayes car, that he was about two blocks away from it, that he never got in front of the Hayes car or on the side of it before the impact and never did bring himself within the 500 feet mentioned in General Statute 20-134 and never did put himself in a position from which he could have seen headlights on the front end of the Hayes car, and that he could not say of his own knowledge whether there were headlights on because he didn't see them.

With respect to negative evidence that is, that one did not see nor one did not hear, it was meaningless if the non-seeing or non-hearing are equally consistent with the occurrence of the events themselves. The showing that a witness was in a position to hear or see or would have heard or would have seen is a prerequisite to the admissibility of negative evidence that the witness did not hear or see. In the absence of such preliminary showing negative testimony does not possess sufficient probative force to require its submission to a jury, Johnson & Sons, Inc. v. R. R., 214 N.C. 484, 199 S.E. 704; Setzer v. Pyramid Life Insurance Co., 258 N.C. 66, 127 S.E.2d 783, nor, in our opinion, to sustain an affirmative finding.

The instructions relating to the liability of Carolyn Ruth Hayes are subject to some question but since they may not arise at a subsequent trial, we deem it unnecessary to discuss them. Since she could be held only in the event that the negligence of Billy Ray Hayes was properly established, we hold that the errors relating to Billy Ray Hayes relieve her of responsibility under the present verdict.

For the reasons stated, we are of the opinion that the defendants, Billy Ray Hayes and Carolyn Ruth Hayes, are entitled to a

New trial.

MOORE, J., not sitting.