Penland v. Greene , 24 N.C. App. 240 ( 1974 )

VAUGHN, Judge.

Defendant brings forward numerous exceptions to the court’s instructions to the jury.

We quote from defendant’s brief:

“During the Court’s charge to the jury the Trial Court instructed the jury as follows (R p 107) :

‘(Now members of the jury, the Court will again instruct you that when it has instructed you to disregard testimony, disabuse it from your mind not to consider it. Please follow those instructions in your deliberations.)’

In effect the Court advised the jury to disregard its former instructions not to consider certain evidence which it had stricken and instructed the jury not to consider.”

On several occasions during the course of the trial, the judge had granted motions to strike certain testimony. On each occasion the jurors were instructed to disregard that testimony and not consider it in their deliberations. It is obvious to us, as it must have been to the jury, that in the quoted part of the instructions the judge was reminding the jurors of his earlier instructions to disregard the stricken testimony and to follow “those [earlier] instructions.” The exception is without merit.

In assignments of error 17 and 18 defendant argues that the judge instructed the jury in such a fashion that it was possible for the jury to conclude that if defendant failed to keep a proper lookout or failed to keep his automobile under control he would be in violation of a statute, the violation of which would constitute negligence within itself. It is sufficient to say that we have carefully considered the charge in that respect and hold that it is not susceptible to the interpretation placed upon it by defendant.

Defendant argues that although the facts involve plaintiff’s entry from a private driveway into a public highway “It is obvious that the Court instructed the jury of the law arising under G.S. 20-158 (dominant-servient highways) and intermingled and thereby confused its instructions pertaining to the law set forth in G.S. 20-156, which involves the entry of an automobile from a private drive or road into a public highway.”

A reading of the charge discloses that the judge, as he instructed the jury on the respective duties of the parties, on occasions used the term “servient highway or street” instead of “private road or drive” when he explained the law arising on the evidence as it related to the intersection of the road or drive leading from the Enka premises and North Carolina Highway 1112. Defendant contends that the judge thereby confused provisions of G.S. 20-158 and G.S. 20-156, thereby instructing the jury on law which did not arise from the evidence and giving conflicting instructions.

Defendant’s argument is without merit. We note that the judge did not read from or refer to either G.S. 20-156 or G.S. 20-158, as such. Defendant does not point out any alleged errors the judge made in explaining the respective right and duties of the two drivers as they approached and entered the intersection. Other than the judge’s occasional use of the term “servient highway or street” instead of “private road or drive,” defendant does not indicate how he feels that the instructions given were erroneous or different from those which he thinks should have been given. That there was no error prejudicial to defendant in the occasional interchange of the term may be illustrated by the following quotation from the charge:

“Now the defendant further says and contends to you that at the time and place in question the plaintiff was negligent in that she violated the statute controlling a person entering a highway from a dominant highway — from a subservient highway. Members of the jury, and the Court instructs you in that regard that the Motor Vehicle Law of North Carolina provides that the driver of a vehicle entering a public highway from a private road or drive shall yield the right-of-way to all vehicles approaching on the public highway, the dominant highway.

In order to comply with this law the driver is required to look at vehicles approaching on the highway at the time when her lookout might be affected to see what she should see, to yield her right-of-way to vehicles on the highway and to delay her entry into the highway until it can be made in safety, and. a violation of this law is negligence per se or negligence within itself. A proximate cause would result in liability, members of the jury.

* * *

. . . the Court instructs you that if you find by the greater weight of the evidence that the plaintiff, Judy Penland . . . violated the rule of starting from a stopped position on a subservient highway, or violated the rule upon entering a dominant highway from a private drive, as the Court instructed you, members of the jury, as you will recall the Court’s instructions.”

Even the Supreme Court has, on occasion, said that G.S. 20-158, which deals with the driving of one entering a main travelled highway from intersecting highways on which a stop sign has been erected, regulates the conduct of one entering the main highway from a private road. Warren v. Lewis, 273 N.C. 457, 461; 160 S.E. 2d 305, 307.

We have considered defendant’s remaining assignments of error and hold that neither those, nor those discussed, disclose error prejudicial to defendant.

No error.

Judge Britt concurs. Judge Campbell dissents.