Kinney v. Goley , 4 N.C. App. 325 ( 1969 )

167 S.E.2d 97 (1969) 4 N.C. App. 325

Donald Guy KINNEY
v.
Charles Reid GOLEY, Sr.
Kenneth E. CROWSON, by his Next Friend, Bobbie M. Green
v.
Charles R. GOLEY and Donald Guy Kinney.
John L. NOLL, Jr.
v.
Charles R. GOLEY and Donald Guy Kinney.

No. 68SC153.

Court of Appeals of North Carolina.

April 30, 1969.

J. W. Clontz, Jerry C. Wilson, High Point, Smith, Moore, Smith, Schell & Hunter, by Bynum M. Hunter and Larry B. Sitton, Greensboro, for appellee Donald Guy Kinney (plaintiff in Case No. 1 and defendant in Cases Nos. 2 and 3).

Ottway Burton, Asheboro, and Haworth, Riggs, Kuhn & Haworth, by John Haworth, High Point, for defendant appellant Charles R. Goley, Sr.

Arch K. Schoch, Jr., High Point, for appellant Kenneth E. Crowson (plaintiff in Case No. 2).

Jerry M. Shuping, and Smith & Casper, by Archie L. Smith, Asheboro, for appellant John L. Noll, Jr. (plaintiff in Case No. 3).

FRANK M. PARKER, Judge.

There is no substantial conflict in the evidence indicating that the automobile collision which gave rise to the three cases here on appeal occurred when the Goley vehicle, traveling north on Highway 220, turned from the northbound lane of travel to cross over the southbound lane in order to enter the service station on the west side of the highway. There is sharp conflict in the evidence, however, as to whether Goley had given a left turn signal before making the turn. Appellant Goley, a defendant in all three cases, assigns as error the trial judge's charge to the jury as to the effect of G.S. § 20-154, if they should find as a fact that he had failed to give a proper turn signal. In this connection, the court charged:

"If you should find from the evidence, and by its greater weight, that this defendant did fail to give such signal, either by the mechanical signal indicating a left turn, or by his hand straight out to the left, as the statute requires, that that would be negligence, per se, that is, that would be negligence of itself, but that wouldn't be enough to find him actionably negligent; so, you have to further find from the evidence, and by its greater weight, that such failure to give a signal was a proximate cause of the collision that took place; but if you find from the evidence, and by its greater weight, that he did fail to give the signal required by statute, and that that was a proximate cause of the collision, then the Court charges you it would be your duty to answer that first issue, ``Yes,' under those circumstances."

The above-quoted portion of the charge, which was the subject of appellant Goley's Exception No. 9, was given in connection with the judge's charge to the jury in the case in which Kinney was plaintiff and Goley was defendant, and the first issue referred to was as to whether plaintiff Kinney was injured by the negligence of defendant Goley. By a subsequent portion of the charge, which is the subject of appellant Goley's Exception No. 21, the trial judge charged in each of the three cases that if the jury should find from the evidence and by its greater weight that:

"(I)f he (Goley) started making his turn without having given a signal for making a turn, as required by statute; and, if you are further satisfied from the evidence and by its greater weight that * * * such failure to give a signal, as required by statute, a distance of 200 feet back from where he turned, if you find that either of those was a proximate cause, a cause without which the collision would not have occurred and one which he should have foreseen that such collision was likely, or that something similar was likely to happen, then the Court charges you that it would be your duty to answer that issue ``Yes.'"

The issue referred to in each of the three cases was as to whether plaintiff was injured by negligence of defendant Goley.

Prior to 1 July 1965, failure to give a turn signal as and when required by G.S. § 20-154 had been held by the North Carolina Supreme Court to be negligence per se. Cowan v. Murrows Transfer Co., 262 N.C. 550, 138 S.E.2d 228; Mitchell v. White, 256 N.C. 437, 124 S.E.2d 137; Grimm v. Watson, 233 N.C. 65, 62 S.E.2d 538. By Chapter 768 of the 1965 Session Laws the Legislature amended G.S. § 20-154(b), effective 1 July 1965, by adding thereto a proviso as follows:

"(P)rovided further that the violation of this section shall not constitute negligence per se."

The collision in the present case occurred after the effective date of this amendment.

In Cowan v. Murrows Transfer Co., supra, Moore, J., in discussing another highway safety statute which had also been amended by the Legislature to provide that a violation was not to be considered negligence per se, stated:

"It is the generally accepted view that the violation of a statute enacted for the safety and protection of the public constitutes negligence per se, i. e., negligence as a matter of law. The statute prescribes the standard, and the standard fixed by the statute is absolute. The common law rule of ordinary care does not apply—proof of the breach of the statute is proof of negligence. The violator is liable if injury or damage results, irrespective of how careful or prudent he has been in other respects. No person is at liberty to adopt other methods and precautions which in his opinion are equally or more efticacious to avoid injury. But causal connection between the violation and the injury or damage sustained must be shown; that is to say, proximate cause must be established. In short, where a statute or municipal ordinance imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty, he is liable to those for whose protection or benefit it was imposed for any injuries or damage of the character which the statute or ordinance was designed to prevent, and which was proximately produced by such neglect, provided the injured party is free from contributory negligence. Aldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331; 38 Am.Jur., Negligence, § 158, pp. 827-829; 65 C.J.S. Negligence § 19, pp. 418-420.

"Where, as in G.S. § 20-149(b), a violation is declared not to be negligence per se, the common law rule of ordinary care applies, and a violation is only evidence to be considered with other facts and circumstances in determining whether the violator used due care.

"The distinction, between a violation of a statute or ordinance which is negligence per se and a violation which is not, is one of duty. In the former the duty is to obey the statute, in the latter the duty is due care under the circumstances. In both instances other facts and circumstances are to be considered on the question of proximate cause; in the latter, other facts and circumstances are to be considered also on the question of negligence. In practical effect the real distinction is not so great as seems apparent from the definitions."

When the trial court in the cases presently before us instructed the jury that if they found as a fact that Goley had failed to give the turn signal as required by G.S. § 20-154 the violation of the statute would be negligence per se, the court usurped one of the functions of the jury. Since a violation of G.S. § 20-154 is no longer to be considered negligence per se, the jury, if they find as a fact the statute was violated, must consider the violation along with all other facts and circumstances and decide whether, when so considered, the violator has breached his common law duty of exercising ordinary care. If a violation of the statute is to be considered negligence per se, the jury would not need to perform this function, since the statute, rather than the common law duty of ordinary care, would provide the applicable standard.

The trial court did read to the jury G.S. § 20-154 in its entirety, including the proviso that violation of its provisions should not be considered negligence per se. However, simply reading the amended statute could not effectively correct the judge's erroneous charge by which he had instructed the jury directly contrary to the provisions of the amended statute. Conflicting instructions to the jury upon a material point, the one correct and the other incorrect, must be held for prejudicial error, requiring a new trial, since it cannot be known which instruction was followed by the jury in arriving at a verdict. Barber v. Heeden, 265 N.C. 682, 144 S.E.2d 886.

Appellee Kinney contends, nevertheless, that any error in the judge's charge in this connection was rendered harmless when the judge went on to charge the jury:

"Defendant says that didn't have anything in the world to do with it, that the man was already over in the plaintiff's lane when he first saw him and that that put him on notice, that he didn't need any further signal, and the Court charges you that you are to remember the evidence, and that if, under this evidence, you are of the opinion that he was already on notice about it, and that such a signal was not necessary, then you would not consider that at all in the matter to be considered as negligence."

We view this portion of the charge as relating to the question of whether failure to give the signal as required by G.S. § 20-154(b) was a proximate cause of the collision, rather than as relating to the question of whether Goley had breached his duty of ordinary care. In any event, since it is impossible to know which of the sharply conflicting versions of the collision the jury found to be the truth of the matter, the above portion of the charge could not eliminate the prejudicial error which was contained in the court's previous very clear, but erroneous, instruction that failure to give the turn signal required by the statute must be considered negligence of itself. Since the erroneous portion of the charge was relevant to all three cases here on appeal, appellant Goley is entitled to new trials in all three of the cases. In view of this holding, it is not necessary that we consider appellant Goley's remaining assignments of error, which relate to other portions of the court's instructions to the jury.

Appellants Crowson and Noll each assign as error the action of the trial judge in consolidating the three cases for trial over their objections. It is well established that the trial court possesses discretionary power in proper cases to order the consolidation of actions for trial. Kanoy v. Hinshaw, 273 N.C. 418, 160 S.E.2d 296; Davis v. Jessup, 257 N.C. 215, 125 S.E.2d 440; Peeples v. Seaboard Air Line R. R., 228 N.C. 590, 46 S.E.2d 649; 1 McIntosh, N.C. Practice 2d, §§ 1342, 1343. In Kanoy v. Hinshaw, supra, while a majority of the Supreme Court approved consolidation under the facts there presented, the Court, speaking through Branch, J., said: "We do wish to stress, however, that in considering consolidation of actions for trial, the trial court should carefully weigh the possibilities of confusion, misunderstanding or prejudice to the parties which might arise from such consolidation." Consideration of the appeal presently before us leads to the conclusion that it would be better to try the actions brought by Crowson and Noll, passengers in the Kinney automobile, separately from the action brought by driver Kinney against driver Goley. The issue of contributory negligence is not involved in the actions brought by the two passengers against both drivers. It is directly involved in the action brought by one driver against the other driver. Consolidation of the three cases for trial presents difficulties in charging the jury in a manner which will not lead to confusion. Under similar circumstances, the North Carolina Supreme Court has held that it would be better practice not to consolidate for purposes of trial. Dixon v. Brockwell, 227 N.C. 567, 42 S.E.2d 680.

Appellant Crowson also assigns as error the removal of his action from the Municipal Court of the City of High Point, in which it was originally instituted, to the Superior Court of Guilford County, High Point Division, which action was taken by the trial court on motion of defendant Goley but over objection of plaintiff Crowson. This contention, however, has been rendered moot by the effectuation of the Judicial Department Act of 1965, G.S. § 7A-1 et seq., in the Eighteenth District. G.S. § 7A-131. Upon remand of all three of the cases involved in this appeal for new trial, the trial would properly be held in the superior court division, since the amount in controversy in each case exceeds $5,000.00. G.S. § 7A-243.

We deem it unnecessary to consider the remaining assignments of error made by appellants Crowson and Noll, since in any event there must be new trials and the questions raised will probably not recur.

New trial.

MALLARD, C. J., and BROCK, J., concur.