Herring v. McClain , 6 N.C. App. 359 ( 1969 )

BRITT, J.

All of the assignments of error brought forward and argued in appellant’s brief relate to the trial judge’s charge to the jury. Appellant contends that the court erred in certain instructions which it gave and also erred in failing to give certain instructions.

It is now the settled rule of appellate courts that verdicts and judgments will not be set aside for harmless error or for mere error and no more. To accomplish this result it must be made to appear not only that the ruling complained of was erroneous but that it was material and prejudicial, amounting to a denial of some substantial right. In Re Ross, 182 N.C. 477, 109 S.E. 365, and cases therein cited.

Appellant assigns as error the following portion of the instructions regarding Dr. Herring’s liability for contribution in the cross-action:

“* * * [E]ven if you find that he had the green light, which the defendant McClain denies, but if you find that to be true, if she has satisfied you by the greater weight of the evidence that Dr. Herring did not under the circumstances keep a lookout that a reasonable prudent person would have kept and did not control his vehicle under those circumstances as a reasonable prudent person would have controlled it in order to avoid a collision with the McClain car in the intersection and that that negligence on his part was a proximate cause * * * it will be your duty to answer the third issue ‘yes,’ but if the defendant McClain has failed to satisfy you * * * then you would answer that issue ‘no.’ ”

Appellant contends this instruction fits into the line of cases holding prejudicial error where the court charged in the conjunctive as to all the specific allegations of negligence upon which the plaintiff relied, the effect being to require the jury to find the defendant guilty of all the acts of negligence detailed by the court in order to answer in favor of the plaintiff. Andrews v. Sprott, 249 N.C. 729, 107 S.E. 2d 560.

In Andrews v. Sprott, supra, the Supreme Court criticized a conjunctive charge which required “the jury to find the defendant guilty of all the acts of negligence detailed by the court” in order to answer the issue for the plaintiff. The charge placed upon the plaintiff the burden of showing speed, defective brakes, failure to keep a proper lookout, and failure to keep his car under control.

In Widenhouse v. Yow, 258 N.C. 599, 129 S.E. 2d 306, the court held that the instruction on contributory negligence was erroneous and prejudicial to defendant Helms in that its effect was to require the jury to find plaintiffs guilty of all the acts of negligence detailed by the court in order to answer the issue on contributory negligence in favor of defendant Helms.

In Farmer v. Reynolds, 4 N.C. App. 554, 167 S.E. 2d 480, this Court adhered to the principle followed in the cases above cited. However, we do not think the quoted portion of the charge constituted prejudicial error in this case for the reason that it was not material.

In the case at bar, appellant alleged that Dr. Herring was negligent in that he (1) ran a stop light, (2) failed to keep a proper lookout, (3) failed to keep his automobile under proper control, (4) drove at excessive speed, (5) operated with improper brakes, and (6) failed to yield the right-of-way.

Appellant contends that the quoted portion of the charge on the cross-claim was prejudicial error because the jury was thereby prevented from holding the additional defendant liable -under either one of two acts of negligence alleged, that is, either “that Dr. Herring did not under the circumstances keep a lookout that a reasonable prudent person would have kept” or that he “did not control his vehicle under those circumstances as a reasonable prudent man would have controlled it in order to avoid a collision with the McClain car in the intersection.” Had the jury found that Dr. Herring had run a red light as alleged by appellant, it would have answered “yes,” as his act would have been negligence per se and the jury was so instructed.

Thus, appellant’s contention that to instruct upon these two aspects of the case in the conjunctive was prejudicial error assumes that the evidence would support a verdict against Dr. Herring upon either of these grounds standing alone. In fact, neither would support a verdict against Dr. Herring because the evidence on each of these aspects is insufficient for submission to the jury. All the evidence is to the effect that Dr. Herring saw the McClain car at the earliest point in time and space that it was possible for any motorist proceeding southwardly on Woodburn to have seen it. Dr. Herring testified: “After I determined that the particular light directing my lane of traffic was green, I proceeded on toward the intersection and intended to look to the left and the right but it was not possible for me to see across the Colonial Store’s parking lot because it was filled with cars. So at the point by the sign I was unable to see any oncoming traffic traveling west on Cameron. I looked to the left immediately after I had seen the sign that said stop here on red and after I had determined that the light was green. The only time I was able to look to my left to see traffic coming was after I had begun to enter the intersection. That was the first time I could see traffic to my left.” The collision then occurred in a matter of seconds. Mrs. McClain testified: “We were both in the intersection when I saw him.”

As to the alleged failure to “control his vehicle under those circumstances as a reasonable prudent man would have controlled it in order to avoid a collision with the McClain car,” there was no evidence to support this allegation.

We hold that under the evidence appellant was not entitled to any instructions on her allegation that Dr. Herring failed to keep a proper lookout or that he failed to keep his automobile under proper control; therefore, appellant was not prejudiced by the instructions complained of.

Appellant assigns as error the failure to charge with reference to excessive speed on the part of defendant Herring. The only evidence as to excessive speed of the Herring car was the opinion expressed by appellant McClain that it was traveling 35 in a 20 mph zone. Appellant’s additional testimony and the physical facts tell a different story: (1) The Herring car was in the intersection when Mrs. McClain first saw it; (2) according to Mrs. McClain’s testimony, she was entering the intersection when she first saw the Herring car; (3) while the Herring car traveled something less than eighteen feet, the McClain car traveled a minimum of twenty-two feet into the intersection. Appellant testified that she was driving approximately 20 mph.

In Douglas v. Booth (No. 6918SC445), filed 17 September 1969, this Court said: “‘As a general rule, evidence which is inherently impossible or in conflict with indisputable physical facts or laws of nature is not sufficient to take the case to the jury, and in case of such inherently impossible evidence, the trial court has the duty of taking the case from the jury.’ Jones v. Schaffer, 252 N.C. 368, 114 S.E. 2d 105; Hardy v. Tesh, 5 N.C. App. 107, 167 S.E. 2d 848.” We hold that appellant failed to offer evidence, consistent with the undisputed physical facts, of excessive speed on the part of Dr. Herring, therefore, the trial court did not commit error in failing to charge with respect to excessive speed.

We have carefully considered the other assignments of error discussed in appellant’s brief, all of which pertain to the charge to the jury, but finding them without merit they are overruled. Considered contextually, as a whole, the charge is free from prejudicial error.

No error.

BROCK and VaughN, JJ., concur.