Andrews v. Sprott , 249 N.C. 729 ( 1959 )

107 S.E.2d 560 (1959) 249 N.C. 729

Anastasla ANDREWS
v.
T. Z. SPROTT.

No. 246.

Supreme Court of North Carolina.

March 18, 1959.

Bell, Bradley, Gebhardt & DeLaney by Ernest S. DeLaney, Jr., Charlotte, for plaintiff, appellant.

Craighill, Rendleman & Kennedy, Charlotte, for defendant, appellee.

HIGGINS, Justice.

The plaintiff, by her assignment of error No. 4, challenges the following portion of the court's charge: "Now, ladies and gentlemen of the jury, if you find from the evidence and by its greater weight as I have defined that term to you, that the defendant operated his car at a reckless rate of speed, that he operated his car with defective brakes, that he failed to keep a proper lookout, and failed to keep his car under control, and if you find that such negligence was the proximate cause of the collision and the resulting injury, then it would be your duty to answer the first issue yes. Otherwise, it would be your duty to answer it no."

The plaintiff argues she is prejudiced by the charge in two respects:

First, the court committed error in charging with respect to the defendant's operation of his car at a reckless rate of speed. Her objection seems to be valid. The complaint does not allege and the evidence does not show speed. It is error to charge on an abstract principle of law not supported by any view of the evidence. Worley v. Champion Motor Co., 246 N.C. 677, 100 S.E.2d 70; State v. McCoy, 236 N.C. 121, 71 S.E.2d 921; H. G. Williams & Co. v. Harris, 137 N.C. 460, 49 S.E. 954.

Second, the court charged in the conjunctive as to all the specific allegations of negligence upon which the plaintiff relied. The effect was to require the jury to find the defendant guilty of all the acts of negligence detailed by the court in order to answer the first issue in favor of the plaintiff. The charge, in the manner given, 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. The plaintiff was entitled to have the jury pass on the question whether the evidence showed the defendant, in any of the particulars alleged, had breached a legal duty which he owed to the plaintiff, and if so, whether such breach proximately caused her injury and damage. Henderson v. Henderson, 239 N.C. 487, 80 S.E.2d 383; Aldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331; Ervin v. Cannon Mills Co., 233 N.C. 415, 64 S.E.2d 431. For additional cases, see Strong's North Carolina Index, Vol. 1, p. 232, n. 49.

The defendant seeks to uphold the instruction by application of the rule permitting, under certain circumstances, the interchange of the disjunctive "or" and the conjunctive "and." True, in the interpretation of wills, deeds, contracts, statutes, etc., the courts have permitted a switch of the words, but only when necessary to give effect to some manifest purpose and to carry out a definite intent. Substitution of the one word for the other is permissible only "when sense requires it." The jury heard what the judge charged. It did not hear what he intended to charge. By requiring the plaintiff to make good on all negligent acts upon which she relied, the court required her to carry too great a burden. For this error, she is entitled to a

New trial.