Adams Ex Rel. Adams v. Beaty Service Co. ( 1953 )

74 S.E.2d 332 (1953) 237 N.C. 136

ADAMS
v.
BEATY SERVICE CO.

No. 524.

Supreme Court of North Carolina.

January 30, 1953.

Porter B. Byrum, William M. Nicholson, Charlotte, for defendant-appellant.

Frank H. Kennedy, Charlotte, Charles E. Knox, Davidson, Marvin Lee Ritch, Charlotte, for plaintiff-appellee.

WINBORNE, Justice.

For determination of this appeal it is necessary to advert to, and consider only two questions arising on assignments of error: (1) To denial of defendant's motions for judgment as of nonsuit, and (2) to failure of the trial judge to properly charge the jury on the rule to be applied in assessing damages.

As to the first question: Taking the evidence offered upon the trial in Superior Court, as shown in the record of case on appeal, and now before this Court, to be true, and in its most favorable light to plaintiff, together with reasonable intendments and legitimate inferences fairly deducible therefrom, we are of opinion, and hold that the evidence is sufficient to withstand demurrer, G.S. § 1-183, and to carry the case to the jury.

It is a general rule of law that the operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. And in the exercise of such duty it is incumbent upon the operator of a motor vehicle to keep same under control, and to keep a reasonably careful lookout, so as to avoid collision with persons and vehicles upon the highway. This duty also requires that the operator must be reasonably vigilant, and that he must anticipate and expect the presence of others. Hobbs v. Queen City Coach Co., 225 N.C. 323, 34 S.E.2d 211, and cases cited. See also Henson v. Wilson, 225 N.C. 417, 35 S.E.2d 245.

And it is said in Wall v. Bain, 222 N.C. 375, 23 S.E.2d 330, 333, a case somewhat similar to the one in hand: "It is the duty of the driver of a motor vehicle not merely to look, but to keep an outlook in the direction of travel; and he is held to the duty of seeing what he ought to have seen." This principle is quoted and applied in Henson v. Wilson, supra.

Moreover, it is not negligence per se to back an automobile on the highway. Newbern v. Leary, 215 N.C. 134, 1 S.E.2d 384. And while the law does not forbid the backing of an automobile upon streets and highways, and to do so does not constitute negligence, the driver of an automobile must exercise ordinary care in backing his machine so as not to injure others by the operation, and this duty requires that he adopt sufficient means to ascertain whether others are in the vicinity who may be injured. Taulborg v. Andresen, 119 Neb. 273, 228 N.W. 528, 67 A.L.R. 642. See Annotation 67 A.L.R. 647 on subject "Liability for damage or injury while automobile is being backed".

In the light of these principles applied to the evidence in the case in hand, we are of opinion and hold that the evidence taken as true is susceptible of these inferences: (1) That plaintiff was in the "little road" between the taxicab and Sugaw Creek road, as the taxicab backed down the "little road" toward Sugaw Creek road; (2) that if he were there, the operator of the taxicab saw him and his pony, or by the exercise of ordinary care could and should have seen him; (3) that the operator of the taxicab was backing it at fast speed, when he had knowledge of the width of "little road", and of the surroundings, and knew, or ought to have known that under such circumstances a collision with and injury to persons, animals or vehicles upon the "little road" was likely to occur. If the jury should so find the facts from the evidence, and by its greater weight, it was the duty of the operator of the taxicab to exercise ordinary care to avoid collision with plaintiff, and his failure to do so would be negligence. This case is distinguishable in factual situation from the cases of Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661; Pack v. Auman, 220 N.C. 704, 18 S.E.2d 247; Mitchell v. Melts, 220 N.C. 793, 18 S.E.2d 406, relied upon by appellant.

Defendant denies that the operator of the taxicab was negligent. This raises an issue of fact which alone the jury may decide. We express no opinion upon the weight of the evidence.

It is appropriate to say that no inference of negligence arises from the mere fact of an accident or injury, nor from the failure of the operator of the taxicab to turn around under the surroundings as revealed by the evidence in the case in hand.

Now as to the second question: G.S. § 1-180, as rewritten by Chapter 107, Session Laws 1949, provides that the judge in giving a charge to the petit jury, either in a civil or criminal action, shall declare and explain the law arising on the evidence given in the case. And decisions of this Court are uniform in holding that failure of the judge to observe and comply with the provisions of this statute is error for which a new trial must be ordered. See Wilson v. Wilson, 190 N.C. 819, 130 S.E. 834; Spencer v. Brown, 214 N.C. 114, 198 S.E. 630; Lewis v. Watson, 229 N.C. 20, 47 S.E.2d 484; State v. Washington, 234 N.C. 531, 67 S.E.2d 498. See also Hawkins v. Simpson, N.C., 74 S.E.2d 331, where the authorities are assembled.

In Wilson v. Wilson, supra, in opinion by Varser, J., it is said "This statute (C.S. § 564) [now G.S. § 1-180] created a substantial legal right in the parties. * * * It is error to fail to comply with it. In the instant case the court * * * did not state the rule for the admeasurement of damages * * *." A new trial was granted.

Applying these provisions of the statute to case in hand, it is seen that the charge of the trial court fails to give to the jury any rule of damage in such cases. This was prejudicial error, for which defendant is entitled to a new trial.

Hence, let there be a

New trial.

PARKER, J., took no part in the consideration or decision of this case.