Howard v. Carman , 235 N.C. 289 ( 1952 )

69 S.E.2d 522 (1952) 235 N.C. 289

HOWARD
v.
CARMAN (two cases).

No. 595.

Supreme Court of North Carolina.

March 19, 1952.

Spence & Boyette, Carthage, for defendant-appellant.

H. F. Seawell, Jr., Carthage, for plaintiffs-appellees.

VALENTINE, Justice.

The only exceptions appearing in the record requiring express consideration are those based on these exceptions:

(1) Assignment No. 11: "The court, after making the statement to the jury * * * regarding certain principles of law applicable to the trial of the cause, directed the jury to answer the first issue in the manner the jury might find the facts to be without explaining and directing the jury as to the law applicable to the evidence elicited upon the trial of the cause; and failed to explain to the jury and give instructions as to the rights of defendant if the jury should find from the evidence, for instance, that the defendant had reached and entered the intersection * * before plaintiff M. L. Howard had reached it, and failed to direct the jury as to the rights of the defendant and the liability of the plaintiff in other material aspects of the evidence introduced on the trial of the cause."

(2) Assignment No. 12: "In the charge of the court upon the second issue, the court simply called attention to some of the contentions of the parties and directed the jury to answer the issue as they might find the facts to be without any attempt to apply the law to the evidence before the court and the jury applicable to this issue." The second issue relates to contributory negligence, alleged against plaintiff M. L. Howard in his case.

It is provided in G.S. § 1-180, as amended by Chapter 107 of 1949 Session Laws, that in jury trials the judge "shall declare and explain the law arising on the evidence given in the case." And the decisions of this Court are uniform in holding that the failure of the presiding judge to declare and explain the law arising upon the evidence is and will be held for error. See Ryals v. Carolina Contracting Co., 219 N.C. 479, 14 S.E.2d 531, and cases cited. See also, among many later cases to like effect, State v. Ardrey, 232 N.C. 721, 62 S.E.2d 53, 55. It is there stated that "in interpreting this statute the authoritative decisions are to the effect that it ``confers upon litigants a substantial legal right and calls for instructions as to the law upon all substantial features of the case'; and further, that the requirements of the statute ``are not met by a general statement of legal principles which bear more or less directly but not with absolute directness upon the issues made by the evidence'", citing Williams v. Eastern Carolina Coach Co., 197 N.C. 12, 147 S.E. 435; State v. Graves, 121 N.C. 563, 28 S.E. 262; Nichols v. Champion Fibre Co., 190 N.C. 1, 128 S.E. 471.

It is also held that the failure of the court to instruct the jury on substantial features of the case arising on the evidence is prejudicial, and this is true even though there be no request for special instruction to that effect. See Spencer v. Brown, 214 N.C. 114, 198 S.E. 630; State v. Ardrey, supra, and numerous other cases.

In the light of the provision of the statute as so interpreted by this Court, and the evidence offered by the respective parties being in sharp conflict, it became the duty of the trial judge to declare and explain the law arising upon the evidence in the case, as the jury should find the facts to be.

The evidence is susceptible of an inference that the defendant entered the intersection before the plaintiff, M. L. Howard, did, and hence, defendant is entitled to have the trial judge declare and explain the principles of law applicable to rights of parties at an intersection. See State v. Hill, 233 N.C. 61, 62 S.E.2d 532, where in opinion by Ervin, J., such principles are set forth. It does not appear that the court so charged the jury.

Likewise, it appears that assignment of error No. 12 is well taken. The testimony of M. L. Howard, if found to be true, is susceptible of the inference that, after seeing the automobile of defendant, he failed to exercise reasonable care to avoid a collision. This is a question for the jury under proper instructions from the court.

The questions presented by the other exceptions may not arise at the next trial and for that reason will not be discussed here.

The failure of his Honor to properly charge the jury as above indicated constitutes reversible error and entitles the defendant to a new trial, and it is so ordered.

New trial.