Mikeal v. Pendleton ( 1953 )

75 S.E.2d 756 (1953) 237 N.C. 690

MIKEAL
v.
PENDLETON et al.

No. 528.

Supreme Court of North Carolina.

May 6, 1953.

Helms & Mulliss and Wm. H. Bobbitt, Jr., Charlotte, for defendants-appellants.

Jones & Small and Robinson & Jones, Charlotte, for plaintiff-appellee.

JOHNSON, Justice.

It is established by the decisions of this Court that a motion for nonsuit on the ground of contributory negligence shown by the plaintiff's evidence will be allowed only when the evidence is so clear that no other reasonable inference is deducible therefrom. Donlop v. Snyder, 234 N.C. 627, 68 S.E.2d 316; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Fowler v. Atlantic Co., 234 N.C. 542, 67 S.E.2d 496.

An examination of the evidence adduced below when considered in its light most favorable to the plaintiff, as is the rule on motion for nonsuit, was sufficient to make out a prima facie case of actionable negligence against the defendants, free of facts and circumstances shown by the plaintiff's own evidence amounting to contributory negligence as a matter of law. The motion for judgment as of nonsuit was properly overruled.

However, we are constrained to the view that the defendants are entitled to a new trial for errors appearing in the charge.

The court in charging the jury said.: "Negligence is not difficult to define. Negligence, Ladies and Gentlemen of the Jury, is a failure to perform some duty imposed by law, a want of due care."

The defendants, under exception duly brought forward, contend that this instruction is not an adequate definition of negligence. They assert that while the trial judge used the phrase "some duty imposed by law," he failed to state the nature and requirements of this "duty"; that while the judge used the term "due care," at no place in the charge was the jury told what does or does not constitute "due care," or by what standard "due care" is to be measured. Thus the defendants urge that it was left open for the jury to speculate as to the meaning of these technical terms and to give them such legal effect as the jury chose. In short, the defendants contend that this portion of the charge left it entirely for the jury to determine what duty the defendant driver owed the plaintiff and what acts or omissions constituted a breach of that duty.

The defendants' exception seems to be well taken. The court inadvertently failed to explain to the jury the rule of the reasonably prudent man. An examination of the entire charge leaves the impression that this oversight may not be treated as harmless error under application of the doctrine of contextual construction. The exception is sustained.

Negligence is a failure to perform some duty imposed by law. It is doing other than, or failing to do, what a reasonably prudent man would have done under the same or similar circumstances. In short, negligence is a want of due care; and, in determining whether due care has been exercised in any given situation by the party alleged to have been negligent, reference must be had to the facts and circumstances of the case, and to the surroundings of the party at the time, and he must be judged by the influence which those facts, and his surroundings, would have had upon a man of ordinary prudence in shaping his conduct, if he had been similarly situated. Drum v. Miller, 135 N.C. 204, 47 S.E. 421, 65 L.R.A. 890; Ramsbottom v. Atlantic Coast Line R. Co., 138 N.C. 38, 50 S.E. 448; Rea v. Simowitz, 225 N.C. 575, 35 S.E.2d 871, 162 A.L.R. 999.

Since the case goes back for retrial, we refrain from discussing the rest of defendants' exceptions.

New trial.