Murchison Ex Rel. Murchison v. Powell , 269 N.C. 656 ( 1967 )

153 S.E.2d 352 (1967) 269 N.C. 656

Colin MURCHISON, by his Next Friend, Jean B. Murchison, Plaintiff,
v.
Edward Joyner POWELL, Defendant.
Jean B. MURCHISON, Plaintiff,
v.
Edward Joyner POWELL, Defendant.

No. 289.

Supreme Court of North Carolina.

March 22, 1967.

Thorp & Etheridge, Rocky Mount, for defendant appellant.

Battle, Winslow, Scott & Wiley, Rocky Mount, for plaintiff appellee.

LAKE, Justice.

There was no error in the overruling of the defendant's motion for judgment of nonsuit. Upon such a motion, the evidence offered by the plaintiff must be taken to be true and that offered by the defendant in conflict therewith must be disregarded. Lewis v. Barnhill, 267 N.C. 457, 461, 148 S.E.2d 536; Dixon v. Edwards, 265 N.C. 470, 144 S.E.2d 408. So considered, the evidence is sufficient to support a finding that the defendant saw the boys riding their horses on a narrow and confined shoulder of the road, and, at a speed in excess of that permitted by the statute, undertook to pass so close to the horse ridden by the minor plaintiff that it should reasonably have been foreseen by him that the sound of the overtaking vehicle would frighten the horse. The two foot clearance required by G.S. § 20-149 applies to the overtaking and passing of another vehicle, not a horse subject to fright by a sudden noise. Even as to the passing of an inanimate vehicle, this is a minimum requirement by the express terms of the statute. The defendant's statement that after the horse shied, he "snatched" the truck to the left and crossed the center line indicates strongly that he could with safety have gone further to the left before overtaking the horse.

The natural reaction of the horse to the noise of the truck overtaking him cannot be regarded as an intervening cause since it should have been foreseen by the defendant as a likely result of his effort to pass so close to the animal. Nance v. Parks, 266 N.C. 206, 146 S.E.2d 24; Garner v. Pittman, 237 N.C. 328, 75 S.E.2d 111, 65 C.J.S. Negligence § 114.

There was no error in the refusal to submit an issue of contributory negligence to the jury. Riding a trotting horse upon the shoulder of a highway is not negligence per se, and there was no evidence whatever in the record to show that the minor plaintiff did or failed to do anything which caused the horse to move off of the shoulder of the road, or that he knew of any propensity of this horse to shy at the approach of motor vehicles, if indeed the horse had such a propensity.

The court in its charge told the jury that the defendant contended he was confronted by a sudden emergency and, thereupon, instructed the jury correctly as to the rule of law applicable to the conduct of one confronted by such emergency. The exception to this portion of the charge cannot be sustained. If the court misstated the contention of the defendant, that circumstance should have been called to the attention of the court before the jury retired so as to enable the court to correct the mistake. Dickson v. Queen City Coach Co., 233 N.C. 167, 63 S.E.2d 297; Steele v. Coxe, 225 N.C. 726, 36 S.E.2d 288. The record shows no objection by the defendant to this statement of his contention before the jury retired to consider its verdict. While the doctrine of sudden emergency has no application to the facts disclosed in this record, since there is nothing to show that the collision and resulting injury was brought about by any act of the defendant after the horse jumped from a safe place on the shoulder, if it did so jump, and therefore this instruction should not have been included in the court's charge, the error in giving this instruction does not appear to have been prejudicial to the defendant. The defendant's argument to the jury does not appear in the record. If the court was correct in its statement as to the defendant's contention concerning the doctrine of sudden emergency, the defendant cannot complain that a correct statement of the rule with reference to that doctrine was included in the charge.

We have carefully considered each assignment of error concerning alleged failures of the court to instruct the jury and find no merit therein. The court's charge to the jury, considered as a whole, complies with the requirements of G.S. § 1-180. It presented the law applicable to the issues clearly to the jury and the jury determined those issues in favor of the plaintiffs.

We have likewise considered each assignment of error relating to the admission of evidence and find all of these to be without merit. The witnesses who testified as to the speed of the defendant's truck had sufficient opportunity to observe it and from an opinion as to its speed. The fact that two of them were young boys who had never driven an automobile would go to the weight of their testimony but would not make it incompetent.

No Error.