Gregory v. Lynch

155 S.E.2d 488 (1967)

271 N.C. 198

Ollice Joe GREGORY v. Grady Battle LYNCH.

No. 851.

Supreme Court of North Carolina.

July 24, 1967.

*490 Barber & Holmes, by Edward S. Holmes, Pittsboro, for defendant appellant.

Seawell, Seawell & Van Camp, by H. F. Seawell, Jr., Carthage, for plaintiff appellee.

PARKER, Chief Justice.

Defendant in his brief asserts that two questions are involved: "I. Did the Court err in failing to comply with G.S. 1-180? II. Did the Court express an opinion prejudicial to the defendant?"

Appellant states in his brief that he abandons his assignments of errors Nos. 1 and 2 for failure to grant his motion for judgment of compulsory nonsuit.

Defendant did not except to the court's review of the evidence nor to its instruction on damages. Excluding these two parts of the charge, the defendant bracketed more than 50% of the remainder, took nine exceptions to the bracketed portions, and grouped them into one assignment of error relating to the following questions: (1) Failure to properly define the law relating to lookout; (2) improper instruction on sudden emergency; (3) failure to instruct on respective duties of motorists proceeding in opposite directions; (4) failure to define the law of unavoidable accident; (5) failure to instruct on insulating negligence; (6) failure to apply each of these principles of law to defendant's evidence; (7) failure to give defendant's contention as to negligence of the third party; and (8) failure to give defendant's contention on maintaining a proper lookout.

"While more than one exception may be grouped under one assignment of error if all the exceptions relate to a single question of law, an assignment of error should present but a single question of law for review. Where one assignment of error is based on separate exceptions and attempts to present several separate questions of law, it is ineffectual as a broadside assignment." 1 Strong's N.C.Index 2d, Appeal and Error, § 24, p. 148; State v. Hamilton, 264 N.C. 277, 141 S.E.2d 506; Horton v. Redevelopment Commission, 262 N.C. 306, 137 S.E.2d 115; Hines v. Frink, 257 N.C. 723, 127 S.E.2d 509.

The court instructed on the duty of the motorist to maintain a proper lookout in substantial accord with the applicable principles of law. Black v. Gurley Milling Co., 257 N.C. 730, 127 S.E.2d 515; Rhyne v. Bailey, 254 N.C. 467, 119 S.E.2d 385. The instruction on the doctrine of sudden emergency was in accordance with prior decisions of this court. Rodgers v. Carter, 266 N.C. 564, 146 S.E.2d 806; Lawing v. Landis, 256 N.C. 677, 124 S.E.2d 877.

*491 The charge on respective duties of motorists proceeding in opposite directions is an accurate statement of the law. Anderson v. Webb, 267 N.C. 745, 148 S.E.2d 846; Watters v. Parrish, 252 N.C. 787, 115 S.E.2d 1. It is noted that the plaintiff did not specifically plead a violation of the statute in this respect and that the court did not give an instruction regarding the effect of a violation of the statute to which plaintiff would have been entitled. This could not have prejudiced the defendant.

"An unavoidable or inevitable accident is such an occurrence or happening as, under all attendant circumstances and conditions, could not have been foreseen or anticipated in the exercise of ordinary care as the proximate cause of injury by any of the parties concerned. In other words, where there is no evidence that the operator of the motor vehicle was negligent in any way, or that he could have anticipated the resulting accident, the accident is deemed to have been an unavoidable or inevitable one for which no recovery may be had." 7 Am.Jur.2d Automobiles and Highway Traffic, § 350. A collision is not unavoidable so as to relieve a motorist of liability, if he was guilty of negligence proximately contributing to the collision. 60 C.J.S. Motor Vehicles § 256. The charge of the court was free of error on this point.

"Where proper instructions on proximate cause are given, the court is under no duty to instruct the jury specifically with respect to insulating negligence in the absence of proper request. * * *" Childers v. Seay, N.C., 155 S.E.2d 259.

Defendant excepted to the following portion of the charge: "Now, in addition to this law the plaintiff also contends that the defendant was driving on his left-hand side of the road at the time that this collision occurred between the plaintiff's car and the defendant's car, and the court instructs you that under the law of the State of North Carolina, it is negligence for the defendant to drive on the left-hand side of the highway at the place and time of this collision." If this had been all that the court said on the subject, defendant may have had cause for complaint. The court immediately afterwards gave instructions on the respective duties of motorists proceeding in opposite directions and concluded with the following statement: "Now, if you find that the defendant drove his car on his left-hand side of the highway on said occasion in an unlawful manner, then that would be negligence, and if you find such negligence was a proximate cause of the injuries and damages suffered by the plaintiff, then you would answer the issue of negligence in favor of the plaintiff, that is `Yes.' Now, on the other side of the case the defendant contends that he drove on the left-hand side of the highway at the time of the collision because he was faced with a sudden emergency and that an unavoidable accident took place, and that the proximate cause of the accident was a third car, the Chevrolet car, and not him, and therefore you should answer that first issue `No,' as far as his negligence is concerned. So at this time, the court will instruct you as to the law in reference to that." Following the definition of the doctrine of sudden emergency the court gave the following instruction: "Now, in addition to this question of sudden emergency, the defendant contends that being faced with a sudden emergency that this, as far as the plaintiff and the defendant was concerned, was an unavoidable accident. Now the court instructs you that an unavoidable accident is one which occurs despite the exercise of reasonable care upon the part of all concerned, that is the plaintiff and the defendant in this case and specifically the defendant, to avoid it. Therefore, if you find from the evidence that the plaintiff received the alleged injuries, if any, by reason of an unavoidable accident as far as the defendant is concerned, brought about as the direct and proximate result of unavoidable circumstances, as far as the defendant is concerned, then you will find for the defendant on the issue of negligence, *492 that is you would answer the first issue `No.'" It does not appear that the jury could have been misled by the excepted portion of the charge in view of repeated instructions correctly defining negligence and properly placing the burden of proof, and the clear statement of the law which followed it.

A careful reading of the charge fails to disclose that in it the court expressed an opinion prejudicial to defendant. That assignment of error is overruled.

"A presumption exists that the judgment is correct. Error warranting a reversal or a new trial must amount to the denial of some substantial right." Key v. Woodlief, 258 N.C. 291, 128 S.E.2d 567. "The burden is on the appellant not only to show error but to show that if the error had not occurred there is a reasonable probability that the result of the trial would have been favorable to him." Mayberry v. Charlotte City Coach Lines, Inc., 260 N.C. 126, 131 S.E.2d 671. A charge to a jury must be read and considered in its entirety, McPherson v. Haire, 262 N.C. 71, 136 S.E.2d 224; Kennedy v. James, 252 N.C. 434, 113 S.E.2d 889, and not in detached fragments. The pleadings, issues, contentions and evidence in this case were comparatively brief and simple. Consequently the charge to the jury was brief, simple and so clear as to be difficult to misunderstand. In the final analysis, the jury had only one question to answer: i. e., whether defendant, in the exercise of reasonable care, could have avoided the collision. It answered this question in the affirmative and ended the case. As stated in Kennedy v. James, supra, "When the charge here is read as a composite whole, prejudicial error as to the defendant sufficient to warrant a new trial is not shown."

We have carefully examined each exception and each assignment of error. We find nothing which in our opinion would justify another trial.

No Error.