Jackson v. McBrideAnnotate this Case
154 S.E.2d 468 (1967)
270 N.C. 367
Henry Lewis JACKSON, by his Next Friend, James Adam Jackson v. Frank McBRIDE.
Supreme Court of North Carolina.
May 24, 1967.
*471 Leath, Bynum, Blount & Hinson, Rockingham, for defendant appellant.
Webb, Lee & Davis, Rockingham, for plaintiff appellee.
The cause of action alleged in the complaint is for the recovery of damages on account of injuries proximately caused by the negligence of the defendant in driving his automobile at an unlawful speed, without keeping a proper lookout, onto the west or left shoulder of the road where the plaintiff was standing, so that it struck him as he stood there. The first issue submitted to the jury was, "Was the plaintiff, Henry Jackson, injured by the negligence of the defendant, Frank McBride, as alleged in the complaint?" This was proper. (Emphasis added.)
To recover in this action, the plaintiff must carry the burden of proving each essential element of the cause of action which he has alleged, substantially as set forth in the complaint. He cannot recover in this action by proving he sustained injuries by other negligent conduct of the defendant if the difference between his allegations and his proof is so substantial as to constitute a material variance. Moore v. Hales, 266 N.C. 482, 146 S.E.2d 385; Messick v. Turnage, 240 N.C. 625, 83 S.E.2d 654; Deligny v. Tate Furniture Co., 170 N.C. 189, 86 S.E. 980; McCoy v. Carolina Cent. R. R., 142 N.C. 383, 55 S.E. 270. "If the plaintiff is to succeed at all, he must do so on the case set up in his complaint." Carswell v. Lackey, 253 N.C. 387, 117 S.E.2d 51. In Talley v. Harriss Granite Quarries Co., 174 N.C. 445, 93 S.E. 995, Walker, J., speaking for the Court, said:"When the proof materially departs from the allegation, there can be no recovery without an amendment. * * * When the difference between the allegation of the pleading and the proof is substantial, so that the other party is grossly misled by it, and it really amounts to alleging one cause of action and proving another, it is not a variance merely, but a failure of proof."
Contributory negligence, as its name implies, is negligence on the part of the plaintiff which joins, simultaneously or successively, with the negligence of the defendant alleged in the complaint to produce the injury of which the plaintiff complains. It does not negate negligence of the defendant as alleged in the complaint, but presupposes or concedes such negligence by him. Contributory negligence by the plaintiff "can exist only as a co-ordinate or counterpart" of negligence by the defendant as alleged in the complaint. Martin v. Highland Park Manufacturing Co., 128 N. C. 264, 38 S.E. 876. See also: Rouse v. Peterson, 261 N.C. 600, 135 S.E.2d 549; Adams v. Board of Education, 248 N.C. 506, 103 S.E.2d 854; Garrenton v. Maryland, 243 N.C. 614, 91 S.E.2d 596; Darden v. Leemaster, 238 N.C. 573, 78 S.E.2d 448; Ogle v. Gibson, 214 N.C. 127, 198 S.E. 598; Ballew v. Asheville & E. T. R. R., 186 N.C. 704, 120 S.E. 334; Davis v. Jeffreys, 197 N.C. 712, 150 S.E. 488; Elder v. Plaza R. R., 194 N.C. 617, 140 S.E. 298; 38 Am. Jur., Negligence, § 177.
In Darden v. Leemaster, supra, Parker, J., now C. J., said, "Where there is no plea of contributory negligence, the submission to the jury of an issue of contributory negligence is not proper," and also said, "The allegation in an answer that the death of the intestate was caused by his own negligence and not by any negligence of the defendant is not a sufficient plea" of contributory negligence. For the same reason, evidence by the defendant to the effect that the plaintiff was injured not by the negligence of the defendant, as alleged in the *472 complaint, but by the plaintiff's own negligence, as alleged in the answer, would not justify the submission to the jury of an issue of contributory negligence.
Of course, if the plaintiff, whether intoxicated or sober, dressed in dark clothing, voluntarily lay down at 1 a. m. on a moonless night across the center line of a blacktopped, unlighted rural road and remained motionless until struck by a passing automobile, he was negligent and could not recover damages for injuries thereby sustained in the absence of allegations and proof not present in this case. The learned trial judge plainly so instructed the jury.
It does not necessarily follow that allegation and proof of such conduct is allegation and proof of contributory negligence requiring submission of that issue. It does not if it negates the plaintiff's contention that he was injured by the negligence of the defendant, as alleged in the complaint. If so, it relates to the first issue only and does not require or permit the submission of an issue of contributory negligence.
The plaintiff alleged, and all of his evidence is to the effect, that he was standing on the dirt shoulder on the defendant's left side of the road and that the defendant drove off of the pavement, onto the left shoulder and ran into the plaintiff. The defendant has alleged, and all of his evidence tends to show, that he was driving on his right side of the road and, upon being confronted suddenly with the plaintiff lying in the middle of the pavement, cut to his right but was unable to avoid striking the plaintiff. Thus, the defendant has not alleged or offered evidence of negligence by the plaintiff which, in conjunction with any negligent act or omission of the defendant, alleged in the complaint, contributed to the plaintiff's injury. The defendant's pleading and proof, therefore, does not allege or show contributory negligence on the part of the plaintiff. The two parties have alleged and offered evidence to prove two entirely different accidents. If the plaintiff was injured as he alleged and testified, he could not have been guilty of the negligent acts and omissions alleged in the answer. If, on the other hand, the plaintiff was lying on the pavement, as alleged in the answer, he could not have been injured by the negligence of the defendant, as alleged in the complaint.
The determinative question for the jury was, which of these alleged accidents actually occurred? They determined that the one alleged and described by the plaintiff is the one which took place. The controversy was fully presented for their decision by the first issue, "Was the plaintiff, Henry Jackson, injured by the negligence of the defendant, Frank McBride, as alleged in the complaint?" The court expressly and clearly instructed the jury to answer this issue "NO" if the plaintiff had failed to satisfy them by the greater weight of the evidence that the accident occurred as he alleged and testified. Again, they were instructed to answer this issue "NO" if they were satisfied from all of the evidence that the accident occurred as the defendant alleged and testified. There was no occasion for the submission of an issue of contributory negligence and there was no error in the court's refusal to do so.
The motion for judgment of nonsuit was properly overruled. The plaintiff's evidence, taken to be true, as it must be upon such a motion, was sufficient to support a finding that he was injured by the negligence of the defendant, as alleged in the complaint. Obviously, a judgment of nonsuit may not be entered on the basis of the defendant's evidence to the contrary. While the plaintiff's own testimony would support a finding that when he knew, or should have known, the defendant's car was angling over toward him, in response to his signal, he turned his head and looked back to the house while remaining in the new path of the car, it does not compel the conclusion *473 that such failure to watch the car contributed to his injury. Furthermore, this is not among the acts alleged by the answer as contributory negligence. For both of these reasons, such failure to watch the approach of the car would not justify a judgment of nonsuit. Douglas v. W. C. Mallison & Son, 265 N.C. 362, 144 S.E.2d 138.
G.S. § 1-180 requires the trial judge to "declare and explain the law arising on the evidence given in the case." The defendant assigns as error the failure of the court below to do so in that the charge does not contain any definition or explanation of "negligence" or of "proximate cause."
The court properly instructed the jury that the burden of proof was upon the plaintiff on both the issues submitted and correctly defined the terms, "burden of proof" and "greater weight of the evidence." There was no other reference to or statement or explanation of any principle or rule of law applicable to the determination of the first issue, and no definition of or explanation of the terms "negligence" and "proximate cause" except the paragraph quoted in the above statement of facts, the only omission in that quotation being this sentence:"If the plaintiff has satisfied you by the greater weight of the evidence that that is what transpired, then I instruct you that would constitute negligence on the part of the defendant, and it would constitute the proximate cause, or one of the proximate causes of the accident, and you would answer the first question YES."
Obviously, this is a peremptory instruction to answer the issue in favor of the plaintiff if the jury should find by the greater weight of the evidence that the defendant drove onto the shoulder to his left, whether to stop and pick up the plaintiff or otherwise, and there struck the plaintiff, whether he saw or should have seen the plaintiff or not. Such an instruction, with no explanation whatever of the meaning of negligence or of proximate cause, does not satisfy the requirement of G.S. § 1-180 and for this error there must be a