Toler Ex. Rel. Bowers v. Brink's, Inc. , 1 N.C. App. 315 ( 1968 )

161 S.E.2d 208 (1968) 1 N.C. App. 315

Linwood Earl TOLER, by his Next Friend, Robert G. Bowers
v.
BRINK'S, INC., Eugene Donald Rhodes, Marvin Lee Raines, Jr. and Dorothy T. Raines.

No. 68SC12.

Court of Appeals of North Carolina.

May 22, 1968.

Kennedy Ward and A. D. Ward, New Bern, for plaintiff appellee.

White, Hooten & White, Kinston, by, Thomas J. White, Kinston, for defendants appellants.

CAMPBELL, Judge.

Both the plaintiff and the defendants offered evidence as to the collision of the two vehicles. The evidence was conflicting, but we are of the opinion that a jury question was presented. Since the case will go back for a new trial, we refrain from a detailed discussion of the evidence.

In the course of the trial the presiding judge permitted the jury to go to the scene of the collision even though nearly four years had elapsed. This was done in the discretion of the trial court and was not error. The record discloses, however, that in the charge of the trial court to the jury, the following was stated:

"You should weigh all the evidence in every way, the oral evidence, the physical evidence, and the evidence that you obtained by viewing the premises." Again, in the charge the trial court in connection with stating the contentions of the plaintiff said: "That this was a sharp curve, and you have been permitted to view the roadway and curve." Thus, in two instances in the instructions given by His Honor to the jury, the jury's view of the scene of the collision was treated as substantive evidence, rather than illustrative evidence. This was error.

In North Carolina there is no statutory authority for a jury view. Pursuant to the inherent authority of the court in the search for truth, a jury view is permissible in the discretion of the trial court. The object, however, is merely to present the scene to the jury more vividly than is possible by the description of witnesses. A jury view is to be used with the same effect as pictures, maps, drawings, and other illustrative sources. See State v. Stewart, 189 N.C. 340, 127 S.E. 260; Stansbury, N.C. Evidence 2d, § 120; 2 McIntosh, N.C. Practice 2d, § 1491; 53 Am.Jur., Trial, § 451; 88 & 89 C.J.S. Trial § 47 and § 464.

In the charge to the jury, the trial court also stated:

"Now, they also contend further and in connection with that too that the defendants were driving the car without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property. Well, you can see how those two things sort of merge into each other and to be sort of taken into consideration conjunctively."

It is impossible for us to know whether the above quotation is correct and actually occurred. We are bound by the record as we receive it. If the above is a correct report of what occurred, it is error. Our statute, G.S. § 1-180, prescribes that the trial court must declare and explain the law arising upon the evidence and a failure to do so constitutes error. Ryals v. Carolina Contracting Co., 219 N.C. 479, 14 S.E.2d 531; Lewis v. Watson, 229 N.C. 20, 47 S.E.2d 484.

The trial court gave no explanation of the above statement taken from G.S. § 20-140(b) and no attempt was made to apply that statement to the evidence in the case. "It is error for a trial court to read a statute to the jury without giving an explanation thereof in connection with the evidence where such explanation is patently necessary to inform the jury as to the meaning of the statute and as to its bearing on the case." Lewis v. Watson, supra.

Other exceptions were taken by the defendants but since they are not apt to arise again, no discussion is deemed necessary.

For the errors pointed out above, we order a

New trial.

BRITT and MORRIS, JJ., concur.