Textile Motor Freight v. DuBose

133 S.E.2d 129 (1963) 260 N.C. 497

TEXTILE MOTOR FREIGHT, Inc.
v.
Mary Maxine Convey DuBOSE, a minor, by her Guardian ad litem, W. H. Convey, and J. H. DuBose.

No. 245.

Supreme Court of North Carolina.

November 20, 1963.

Webb & Lee, Charles Sedberry, Rockingham, Sanders & Walker, Charlotte, for plaintiff appellee.

Carpenter, Webb & Golding, Pierce, Wardlow, Knox & Caudle, Charlotte, for defendant appellants.

DENNY, Chief Justice.

The defendants assign as error certain portions of the following instructions to the jury: (1) "Now, members of the jury, there is another statute which states in part as follows: `The driver of any vehicle upon a highway, before starting, stopping or turning from a direct line, shall first see that such movement can be made in safety, (I) and if, whenever the operator of any other vehicle may be affected by such movement, shall give a signal as required in this section, plainly visible to the driver of such other vehicle of his intention to make such a move, and the signal shall be by means of the hand and arm and manner herein specified or by any mechanical or electrical signal devise approved by the Department of Motor Vehicles,' and the signal for left turn, members of the jury, is with the left hand, the hand and arm extended in a horizontal direction with the forefinger pointed and the electrical turn signal referred to is such electrical turn signal which when operated inside by a lever or switch, inside the motor vehicle, shall start a blinking light outside the motor vehicle, indicating the direction to which the operator intends turning his motor vehicle. (J); and (2) "* * * (I)f the plaintiff has satisfied you from the evidence and by its greater weight, that each and all of the following three essential elements existed with respect to plaintiff's damage; first, that the plaintiff's tractor was damaged in a collision at the intersection of Independence Boulevard and Commonwealth and Eastway Drive, and, second, that at and prior to the collision between the tractor-trailer of the plaintiff and the Volvo being operated by the defendants, that at and prior to the collision that the defendants were negligent in the operation of the Volvo in that they (S) operated it at a high and dangerous rate of speed under the circumstances then and there existing, (T) or operated it without keeping a proper lookout or operated it without keeping it under proper control, or attempted to make a left turn without seeing first that the turn could be made in safety (U) and without giving the proper and lawful signal for that left turn; (V) and, third, that such negligence on the part of the defendants in the operation of said Volvo automobile was one of the proximate causes of the collision and of the damages to the plaintiff's tractor, then it would be your duty to answer the first issue YES."

The defendants except to and assign as error those portions of the charge between the letters (I) and (J), (S) and (T), and (U) and (V). The only evidence with respect to the speed of the Volvo car operated by the minor defendant was that of the plaintiff's driver who testified, "When I first saw the small foreign car in the northern lane of Independence Boulevard for eastbound traffic it was going about 10 or 15 miles an hour. After I first saw it, it headed on in towards Eastway Drive and speeded up as it went across the intersection."

No evidence was adduced in the trial below to support the plaintiff's allegation to the effect that the minor defendant failed to give a proper hand signal or other warning of an intention to make a left turn.

The headnote in the case of Farrow v. White, 212 N.C. 376, 193 S.E. 386, reads: "Where there is no allegation or evidence that [the] defendant driver failed to give a warning signal required of him by the statute under the circumstances, it is error for the court to charge the law requiring the giving of such signal, since the court is required to charge the law arising upon the evidence, C.S., 564" (now G.S. § 1-180). (Emphasis added.)

In Andrews v. Sprott, 249 N.C. 729, 107 S.E.2d 560, this Court said: "* * * (T)he court committed error in charging with respect to the defendant's operation of his car at a reckless rate of speed. * * 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." See also Carswell v. Lackey, 253 N.C. 387, 117 S.E.2d 51.

The defendants have not argued in their brief their assignment of error to the failure of the court below to sustain their motion for judgment as of nonsuit interposed at the close of all the evidence. Consequently, this assignment of error will be taken as abandoned. Rule 28 of the Rules of Practice in the Supreme Court, 254 N.C. 783, at page 810.

We deem it unnecessary to consider and pass upon the other assignments of error, some of which seem not to be without merit.

In our opinion, the defendants are entitled to a new trial, and it is so ordered.

New trial.