Daughtry v. . Cline , 224 N.C. 381 ( 1944 )

BARNHILL, J., concurring.

STACY, C. J., dissenting.

WINBORNE, J., concurs in dissenting opinion. This is a civil action brought to recover damages for injuries alleged to have been caused by the negligence of the defendant in backing a truck over the plaintiff, while engaged in the construction of a taxiway at Fort Bragg, wherein actionable negligence was denied and a plea of contributory negligence interposed. The usual issues involving actionable negligence of the defendant, contributory negligence of the plaintiff, and damages were submitted to and were answered by the jury in favor of the plaintiff. From judgment predicated on the verdict the defendant appealed, assigning error. The defendant, appellant, sets out in his brief two groups of exceptions relied upon by him for a reversal of the judgment of the court below or for the awarding of a new trial. The first group is based upon the refusal of the court to sustain the demurrer to the evidence duly lodged under G.S.,1-183, and the second group is based upon a portion of the charge relative to the third issue involving the measure of damage.

The evidence tends to show that the plaintiff, William T. Daughtry, Jr., while engaged as a civil engineer by the Government on a government project let to the defendant, F. D. Cline, for the construction of a taxiway at Pope Field, Fort Bragg, and while inspecting a sub-grade, in grading the taxiway, prior to the placing of asphalt thereon, was injured by the backing of a truck over him. It was defendant Cline's business to get the grade satisfactory for surfacing, and in order to do this it was necessary for him to sprinkle the surface with a sprinkler on trucks. While the plaintiff was "squatting down" to determine a level on the taxiway in the course of construction one Emmett Graham, who was driving a sprinkler truck for the defendant, backed said truck over the plaintiff from his rear, seriously injuring him.

The defendant, on his motion for judgment as in case of nonsuit, does not stress in his argument any contention that there was not sufficient evidence to go to the jury upon the issue of the defendant's actionable negligence, but does seriously urge that under all the evidence the plaintiff was guilty of contributory negligence, and that the defendant's motion for dismissal should for this reason have been allowed.

While under authority of Moore v. R. R., 185 N.C. 189, 116 S.E. 409, the fact that the evidence tends to show that the plaintiff might have been so absorbed in his duties as to render him oblivious of his danger, and to have thereby created the duty on the part of the driver of the truck to exercise due care to observe such danger and avoid it, we do not concur with the contention of the defendant that the evidence of the action of the plaintiff established contributory negligence as a matter of law. The fact that the evidence tends to show that the plaintiff apparently did not see or did not hear the backing truck, or certainly did not avoid the collision with it, does no more than furnish some evidence of negligence on his part, a failure to use due care for his own protection. The court apparently took this view of the case when it denied the motion to dismiss the action and submitted the issue of contributory negligence; and to the court's charge on this issue there is no exception, except as the motion to dismiss implies an exception not only to the submission of the issue, but also to all of the charge relative thereto.

There are a number of cases which hold that where a plaintiff is so absorbed in the performance of his duties as to render him oblivious of danger, and this obliviousness to danger is apparent, or should, in the exercise of due care, have been apparent to the defendant, the defendant is thereby charged with the duty of using due care to avoid injuring the plaintiff, and the plaintiff is not guilty of such contributory negligence as would bar him from recovery against the defendant for not exercising due care to protect himself from the danger which was obvious or should, in the exercise of due care, have been obvious to the defendant. Moore v. R. R.,supra; Davis v. R. R., 175 N.C. 648, 96 S.E. 41; Lassiter v. R. R.,133 N.C. 244, 45 S.E. 570; Brown v. R. R., 144 N.C. 634, 57 S.E. 397.

A judgment of involuntary nonsuit on the ground of contributory negligence of the plaintiff cannot be rendered unless the evidence is so clear on that issue that reasonable minds could draw no other inference.Manheim v. Taxi Corp., 214 N.C. 689, 200 S.E. 382. Contributory negligence can be taken advantage of on a motion as of nonsuit when the plaintiff's own evidence tends only to establish it, as he thus proves himself out of court. Elder v. R. R., 194 N.C. 617, 140 S.E. 298;Godwin v. R. R., 220 N.C. 281, 17 S.E.2d 137, and cases there cited.

We do not concur with the contention of the defendant that the evidence of the plaintiff is so clear that reasonable minds could draw but the single inference of the plaintiff's contributory negligence, or that such evidence tends only to establish such contributory negligence. The exceptions to the refusal to grant the defendant's motion to dismiss under G.S., 1-183, are not sustained.

The second group of assignments of error set out in the defendant's brief are based on an excerpt from his Honor's charge on the third issue relative to the measure of damage. It is urged for error that the court charged the jury as follows: "So, gentlemen, if you come to consider that question, the third issue, you have a right to take into consideration the age of the plaintiff at the time, his physical and mental condition at the time, and his physical and mental condition since, resulting from this accident; his means and ability to engage in useful and gainful occupation for his livelihood, his ability to make money, and you may take into consideration the pain he had suffered, the loss of time, the lack of opportunity to engage in profitable employment or gainful occupation as a result of this injury. You may consider all these things and let your answer be in one lump sum, what you think would be a fair amount to fairly compensate him for his pain and suffering, physical ills and disabilities, sustained as a result of the accident; and his reduced earning capacity and inability to carry on, resulting from the accident, and say in one lump sum what would be a fair amount of award to compensate him for his injuries."

The plaintiff alleged in his complaint that he had been seriously and permanently injured, that he probably would never be able to walk again except by the use of crutches, and that he probably will continue an invalid the remainder of his life. The plaintiff introduced evidence including the testimony of Dr. R. L. Pittman, the physician who attended him, tending to substantiate the allegations made in the complaint.

The defendant contends that since the charge contains no clause limiting any recovery for any losses which might accrue in the future to the present cash value, or present worth of such losses, the excerpt assailed was error. With this contention we are constrained to agree.

While it is conceded that the excerpt from the charge under consideration may be in substantial accord with the charge in Murphy v.Lumber Co., 186 N.C. 746, 120 S.E. 342, still we are unable to reconcile what is said in the case at bar with other utterances of the court upon the subject over a long period of years. In Lamont v. Hospital,206 N.C. 111, 173 S.E. 46, in speaking to the subject, it is written: "This charge is defective in that it fails to limit the plaintiff's recovery for future losses to the present cash value or present worth of such losses. Taylor v. Construction Co., 193 N.C. 775, 138 S.E. 129." The pertinent decisions on the subject are assembled in Shipp v. Stage Lines, 192 N.C. 475,135 S.E. 339, and in Johnson v. R. R., 163 N.C. 431, 79 S.E. 690.

We conclude that we should follow the long line of decisions, which seem to be sustained by sound reasoning. We, therefore, hold that the assignment of error addressed to the charge was well taken, and entitles the defendant to a

New trial.