Medlin v. Spurrier & Co.

79 S.E.2d 209 (1953) 239 N.C. 48

MEDLIN
v.
SPURRIER & CO., Inc.

No. 527.

Supreme Court of North Carolina.

December 16, 1953.

Basil L. Whitener and Grady B. Stott, Gastonia, for plaintiff, appellee.

Mullen, Holland & Cooke, Gastonia, for defendant, appellant.

JOHNSON, Justice.

The evidence was insufficient to require the submission of the defendant's tendered issue based on the doctrine of last clear chance. No error has been made to appear in respect to the court's refusal to submit this issue. Aydlett v. Keim, 232 N.C. 367, 61 S.E.2d 109; Ingram v. Smoky Mountain Stages, 225 N.C. 444, 35 S.E.2d 337. See also Matheny v. Central Motor Lines, 233 N.C. 673, 65 S.E.2d 361. The cases relied on by the defendant, including Newbern v. Leary, 215 N.C. 134, 1 S.E.2d 384, and Morris v. Seashore Transportation Co., 208 N.C. 807, 182 S.E. 487, are factually distinguishable.

However, our examination of the record leaves the impression that the evidence relied on by the defendant is sufficient to justify, though not necessarily to impel, the inference that the defendant is entitled to recover on its counterclaim. This made it an issue for the jury. Maddox v. Brown, 232 N.C. 244, 59 S.E.2d 791; Deaton v. Deaton, 234 N.C. 538, 67 S.E.2d 626. See also Blanton v. Carolina Dairy, Inc., 238 N.C. 382, 77 S.E.2d 922; Cooley v. Baker, 231 N.C. 533, 58 S.E.2d 115; Stovall v. Ragland, 211 N.C. 536, 190 S.E. 899. Therefore, the ruling of the trial court in allowing the plaintiff's demurrer to the evidence as to the counterclaim must be held for error.

Next, we note that in the charge the jury's attention was directed to these considerations:

"Gentlemen, we have a statute in North Carolina prescribing the various speeds at which we are permitted to drive automobiles. If you are in a business district you are limited to 20 miles an hour; if you are in a residential district the maximum speed is 35 miles per hour. (And out on the open highway where you are not in a business district or in a residential district the maximum speed is 55 miles per hour. Gentlemen, the Court instructs you there is not evidence in this case to show that this collision occurred either in a residential section or in a business district under the requirements of the law. The law says in order for a district to be a business district that the territory contiguous to the highway for a distance of 300 feet or more, 75% of it would have to be occupied by business establishments being occupied and used for business purposes, and in a residential district the territory contiguous to the highway, or 75% of it for a distance of 300 feet, would have to be occupied by dwelling houses that were being occupied at the time and business establishments that were occupied at the time. There is not any evidence, gentlemen, in this case that this particular section of West Main Street would fall under either of those definitions as contained in the law. So the Court instructs you that the maximum speed,—I am not instructing you that's the speed this plaintiff had a right to drive at, but that the maximum speed would be 55 miles per hour.)"

To the foregoing portion of the charge appearing in parentheses, the defendant excepted.

Conceding, without deciding, that on the record as presented the evidence is not sufficient to justify the inference that the collision occurred in a residential district as defined by G.S. § 20-38(w)1, nevertheless, in view of the trial court's positive instruction that the evidence is insufficient to show that the area is a residential district, we think the defendant was entitled to have the jury instructed as to the provisions of G.S. § 20-141 (c), which reads as follows: "The fact that the speed of a vehicle is lower than the foregoing limits shall not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions, and speed shall be decreased as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care."

The court neither read to the jury the language of the foregoing statute nor undertook to explain or apply its provisions to the evidence in the case. The failure to do so, made the subject of a specific exception and duly brought forward, must be held for error as a failure to comply with the requirements of G.S. § 1-180, within the purview of the rule explained and applied by Ervin, J., in Lewis v. Watson, 229 N.C. 20, 47 S.E.2d 484.

Since the case goes back for a new trial, we refrain from discussing the rest of the defendant's assignments of error.

The verdict and judgment below will be set aside to the end that the defendant may have a new trial in accord with this opinion, and it is so ordered.

New trial.