McGinnis v. Robinson , 252 N.C. 574 ( 1960 )

114 S.E.2d 365 (1960) 252 N.C. 574

Reda Cochran McGINNIS
v.
Catherine ROBINSON and Harold McGhee.

No. 386.

Supreme Court of North Carolina.

May 18, 1960.

Charles P. Green, Louisburg, and Frank B. Banzet, Warrenton, for defendant Catherine Robinson, appellant.

George T. Blackburn, Henderson, John H. Kerr, Jr., Warrenton, and W. Hayes Pettry, Charleston, W. Va., for plaintiff, appellee.

BOBBITT, Justice.

While in sharp conflict with evidence offered by defendant, the evidence offered by plaintiff was sufficient to support her allegations that the collision and her injuries were proximately caused by the negligence of the operator of the Mercury; and, although there was no direct evidence, the circumstantial evidence, when considered in the light most favorable to plaintiff, was, in our opinion, sufficient to support a finding that defendant was operating the Mercury when the collision occurred. See Stegall v. Sledge, 247 N.C. 718, 722, 102 S.E.2d 115; Bridges v. Graham, 246 N.C. 371, 377, 98 S.E.2d 492, and cases cited.

Defendant's motion for judgment of nonsuit was properly overruled. Since a new trial is awarded, we refrain from discussing the evidence presently before us except to the extent necessary to show the reasons for the conclusion reached. Caudle v. Southern Ry. Co., 242 N.C. 466, 88 S.E.2d 138.

Uncontroverted evidence tended to show these facts: The McGinnis car (Ford) was the last of three cars traveling east on No. 158 By-Pass. The first was a Chevrolet, owned and operated by Stanley Miller. The second was a Pontiac, bearing a Kentucky license plate, owned and operated by a Mr. Shearin. The Mercury was the second of two cars traveling west on No. 158 By-Pass. The first was a 1947 Dodge operated by Mrs. Boyd.

Evidence for plaintiff tended to show: The Mercury pulled out to its left from behind the Boyd car. Miller and Shearin, to avoid collision, pulled to the extreme right of their traffic lane. The Mercury crossed the center line, into the path of the McGinnis car. The collision occurred in McGinnis' (south) traffic lane.

Evidence for defendant tended to show: McGhee, the driver of the Mercury, pulled out to go around the Dodge and got alongside of it. McGhee observed the approaching car(s), saw he could not pass, dropped back behind the 1947 Dodge and in doing so sideswiped its left rear corner. He had gotten back on his (north) side of the road when struck by the McGinnis car.

Plaintiff also offered evidence tending to show damage to the left rear fender of the Dodge and dark green paint on the right door of the Mercury that matched the green paint on the Dodge. McGinnis, plaintiff's husband, testified: "The Mercury was meeting me, going west, and went around another car and hit me."

It appears from the evidence of both plaintiff and defendant that the Mercury struck the left rear of the Dodge. Plaintiff contends this contact occurred when the Mercury pulled out to its left into the lane of traffic of McGinnis, while defendant contends it occurred when McGhee dropped back from a position alongside of the Dodge into the Mercury's lane of traffic.

Defendant, by exceptions to the court's failure to charge in stated particulars, contends the court failed to declare and explain the law arising on the evidence as to all substantial features of the case as required by G.S. § 1-180, citing Glenn v. City of Raleigh, 246 N.C. 469, 98 S.E.2d 913, and similar cases. Defendant emphasizes the failure of the court to give a positive instruction to the effect that the jury should answer the second issue, "No," if it found the collision occurred, as defendant's evidence tended to show, on the Mercury's right side of the highway. Whether the asserted deficiency is sufficient to justify a new trial need not be decided. Defendant's exception to a portion of the charge as given is well taken and is deemed sufficiently prejudicial to require a new trial.

Defendant excepted to this portion of the charge: "I instruct you further that we have in North Carolina another section which is entitled G.S. 20-149, which reads as follows: ``A driver of any vehicle overtaking another vehicle proceeding in the same direction shall pass at least two feet to the left thereof, and shall not again drive to the right side of the highway until safely clear of such overtaking (sic) vehicle.' The Court instructs you that a violation of that statute is negligence in itself, and if the defendant violated that section of our General Statutes, and it was the proximate cause of the damage and injury to the plaintiff, then you would answer the second issue Yes." The court did not attempt to relate this instruction to any state of facts supported by evidence. Moreover, there is neither allegation nor evidence that the contact between the Mercury and the Dodge was a proximate cause of the collision between the Mercury and the Ford.

G.S. § 20-149(a), quoted by the court, is inapplicable to the factual situation under consideration. The principal purpose of G.S. § 20-149(a) is the protection of the "overtaken vehicle" and its occupants. Hence, it would be relevant if this were an action by Boyd for damages to the Dodge. Absent unusual circumstances, it has no bearing where the collision is between vehicles proceeding in opposite directions. It is noted that the court did not call attention to the provisions of G.S. § 20-150.

"It is established by our decisions that an instruction about a material matter, not based on sufficient evidence, is erroneous. (Citations.) And it is an established rule of trial procedure with us that an abstract proposition of law not pointing to the facts of the case at hand and not pertinent thereto should not be given to the jury. (Citations.)" Childress v. Johnson Motor Lines, 235 N.C. 522, 530, 70 S.E.2d 558, 564. In Lookabill v. Regan, 245 N.C. 500, 96 S.E.2d 421, a new trial was awarded because instructions, based on the provisions of G.S. § 20-149, were inapplicable to the factual situation then considered.

The quoted instruction, in relation to the present factual situation, was erroneous and prejudicial. The evidence of both plaintiff and defendant is to the effect that the Mercury made actual contact with the Dodge and hence was not at least two feet to the left thereof. Thus, the uncontroverted evidence supports a finding that the driver of the Mercury violated G.S. § 20-149(a); but there is neither allegation nor evidence that such violation was a proximate cause of the collision between the Mercury and the Ford.

While other assignments of error appear to have merit, the questions raised may not recur upon a new trial. Hence, particular consideration thereof upon the present record is deemed inappropriate.

New trial.