Clay v. Garner , 16 N.C. App. 510 ( 1972 )

192 S.E.2d 672 (1972) 16 N.C. App. 510

Karl J. CLAY
v.
Virgil M. GARNER.

No. 7226SC796.

Court of Appeals of North Carolina.

November 22, 1972.

Whitfield & McNeely, by Richard P. McNeely, Charlotte, for plaintiff appellant.

Helms, Mulliss & Johnston, by Robert B. Cordle, Charlotte, for defendant appellee.

CAMPBELL, Judge.

This appeal presents two questions; the first being whether error was committed in failing to set aside the verdict on the second issue as being against the greater weight of the evidence. Basically, this assignment of error raises the point as to whether the evidence, taken in the light most favorable to the defendant on whom the burden of proof rested on the second issue, was sufficient to go to the jury. We think it was, and this assignment of error is denied.

The second question presented is whether the trial judge committed prejudicial error in the charge to the jury.

The sufficiency of the charge is hidden within a great maze of evidentiary facts. Five witnesses testified, and this testimony comprises 27 pages of the record. The judge's charge comprises 30 pages of the record.

G.S. § 1A-1, Rule 51, Rules of Civil Procedure, requires the trial judge to declare and explain the law arising on the evidence given in the case. He is not required to recapitulate the evidence witness by witness. A summary of the material aspects of the evidence sufficient to bring into focus controlling legal principles is all that is required with respect to stating the evidence. Rubber Company v. Distributors, Inc., 256 N.C. 561, 124 S.E.2d 508 (1962).

"The court, in reviewing the evidence offered by the respective parties, is not required to give the jury a verbatim recital of the testimony. It must of necessity condense and summarize the essential features thereof in short-hand fashion. All that is required is a summation sufficiently comprehensive to present every substantial and essential feature of the case. When its statement of the evidence in condensed form does not correctly reflect the testimony of the witnesses in any particular respect, it is the duty of counsel to call attention thereto and request a correction." Steelman v. Benfield; Parsons v. Benfield, 228 N.C. 651, 654, 46 S.E.2d 829, 832 (1948).

The chief purpose of the charge is to aid the jury to understand clearly the case and to arrive at a correct verdict. Rule 51 confers a substantial legal right, and imposes upon the trial judge a positive duty, and his failure to charge on the substantial features of the case arising on the evidence is prejudicial error, even without a prayer for special instruction. Faison v. Trucking Co., 266 N.C. 383, 146 S.E.2d 450 (1966).

In the instant case the trial judge correctly stated the principles of law with respect to the duty of a driver to exercise due care, to keep a proper lookout, and the duty to maintain control of the vehicle. He correctly defined the burden of proof, negligence, proximate cause, and the element of foreseeability.

On the issue of plaintiff's contributory negligence the trial judge charged:

"The court instructs you that if you find by the greater weight of the evidence that the plaintiff, Karl J. Clay, on this occasion complained of, operated his motor vehicle on the public highway without maintaining a proper lookout, as the court has instructed you, or that he did not operate his motor vehicle and keep it under proper control at the time and place complained of, and if you find either of these and find it by the greater weight of the evidence, and further find by the greater weight of the evidence that such negligence or acts of the plaintiff was one of the immediate and proximate causes of the collision, which combined and concurred with the negligence of the defendant, to produce this collision and resulting injury and damage to the plaintiff, then you would answer this second issue in favor of the defendant, that is, yes.

On the other hand, ladies and gentlemen of the jury, if after considering all the evidence the defendant has not so satisfied you or if you should find the evidence evenly balanced in your minds, or if you are unable to tell where the truth lies, then your verdict as to the issue must be for the plaintiff and your answer to this issue would be No. . ."

We think this mandate was sufficient and no prejudicial error appears. Freight Lines v. Burlington Mills and Brooks v. Burlington Mills, 246 N.C. 143, 97 S.E.2d 850 (1957).

We think the charge, when read contextually, reveals that the law of the case was presented to the jury in such manner as not to mislead or misinform the jury.

No error.

MORRIS and PARKER, JJ., concur.