Widenhouse v. Yow

129 S.E.2d 306 (1963) 258 N.C. 599

A. W. WIDENHOUSE, Jr.
v.
W. C. YOW, Jr., and Howard Dean Helms.
A. W. WIDENHOUSE, Sr., trading as Widenhouse Motors
v.
W. C. YOW, Jr., and Howard Dean Helms.

No. 532.

Supreme Court of North Carolina.

February 1, 1963.

Williams, Willeford & Boger, Concord, for defendant appellant Yow.

Smith & Griffin, Monroe, for defendant appellant Helms.

Hartsell, Hartsell & Mills and E. T. Bost, Jr., Concord, for plaintiff appellees.

BOBBITT, Justice.

Each defendant assigns as error the denial of his motions for judgment of nonsuit.

There was ample evidence to support a finding that, as alleged by plaintiffs, (1) the negligent operation of the Ford by Helms proximately caused the collision and (2) defendant Yow as owneroccupant of the Ford was liable for damages caused by the actionable negligence of Helms. Helms contends the evidence offered by plaintiffs and admitted over his objections tending to show Helms was the operator of the Ford was incompetent and should have been excluded. However, admitted evidence, whether competent or incompetent, must be considered on a defendant's motion for judgment of nonsuit. Kientz v. Carlton, 245 N.C. 236, 246, 96 S.E.2d 14, and cases cited; Frazier v. Suburban Rulane Gas Co., 248 N.C. 559, 103 S.E.2d 721. Be that as it may, the competent and positive testimony of defendant Yow and his brother, Dock Robert Yow, identified Helms as the operator of the Ford. When a defendant offers evidence, the only motion for judgment of nonsuit to be considered is that made at the close of all the evidence. G.S. § 1-183; Murray v. Wyatt, 245 N.C. 123, 128, 95 S.E.2d 541.

With reference to the contention of each defendant that plaintiffs were contributorily negligent as a matter of law, it is our opinion, and we so hold, that the evidence, when taken in the light most favorable to plaintiffs, does not establish plaintiffs' contributory negligence so clearly that no other reasonable inference or conclusion may be drawn therefrom. Dennis v. Albemarle, 243 N.C. 221, 223, 90 S.E.2d 532.

Defendants' motions for judgment of nonsuit were 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 conclusions reached. Mason v. Gillikin, 256 N.C. 527, 530, 124 S.E.2d 537, and cases cited.

In the interpretation of the verdict, these legal principles must be kept in mind. It is well settled that a verdict must be interpreted with reference to the pleadings, the evidence and the judge's charge. Guy v. Gould, 202 N.C. 727, 164 S.E. 120; Jernigan v. Jernigan, 226 N.C. 204, 37 S.E.2d 493; Reid v. Holden, 242 N.C. 408, 413, 88 S.E.2d 125; Litaker v. Bost, 247 N.C. 298, 306, 101 S.E.2d 31; Gunter v. Winders, 253 N.C. 782, 785, 117 S.E.2d 787.

With reference to the first issue, the court instructed the jury the burden of proof was on plaintiffs to establish by the greater weight of the evidence that the negligent operation of the Ford by Helms proximately caused the collision and plaintiffs' damages; and if they found from the evidence and by its greater weight that the negligent operation of the Ford proximately caused the collision but failed to find from the evidence and by its greater weight that Helms was the operator thereof, the jury should answer the first issue "No."

The court instructed the jury they would consider the second issue only if they answered the first issue "No." If they answered the first issue "No," the judge instructed the jury they should answer the second issue "Yes" if the plaintiffs had satisfied them from the evidence and by its greater weight that the negligent operation of the Ford by the driver thereof (without identifying any particular person as the driver) proximately caused the collision and plaintiffs' damages.

When the jury, by answering the second issue "Yes," found that the negligent operation of the Ford by the driver thereof proximately caused the collision and plaintiffs' damages, it seems clear the jury answered the first issue "No" solely because it failed to find that Helms was the operator of the Ford.

The court submitted the case to the jury as if the complaints had been amended prior to or during trial to set forth the allegations of the (subsequently filed) amended complaints. When defendant Yow was advised the case would be so submitted does not appear. Certainly he had notice thereof from the time the court settled the issues. There is no merit in the contention of defendant Yow that he was entitled to judgment that plaintiffs recover nothing from him on account of plaintiffs' failure to establish that Helms (rather than defendant Yow) was the operator of the Ford.

Defendant Yow assigns as error the orders permitting plaintiffs to file said amended complaints after verdict and before judgment. He contends that, unlike the factual situation considered in Litaker v. Bost, supra, the amendments changed the theory of plaintiffs' actions. Originally, he contends, plaintiffs alleged Helms was the operator of the Ford and he, defendant Yow, was liable as owner-occupant for Helms' negligence; but under the after-verdict amendments plaintiffs' actions are to recover on the ground he, defendant Yow, was the actual operator of the Ford. It is noted: Whether defendant Yow or defendant Helms was operating the Ford is a matter of importance (1) in respect of their rights and liabilities inter se and (2) in respect of what counterclaim(s), if any, are barred by the negligence (contributory negligence), if any, of the driver of the Ford. However, for reasons noted below, we need not determine whether the afterverdict amendments substantially changed the claims of plaintiffs within the meaning of G.S. § 1-163 or whether defendant Yow was otherwise prejudiced in respect of the after-verdict amendments.

Defendant Helms excepted to and assigned as error the following portion of the court's charge:

"Now, the Court charges you as a matter of law, if you come to this sixth issue, if you are satisfied from the evidence and by its greater weight that the plaintiff Widenhouse, Jr. was operating his automobile at more than 60 miles an hour on this highway, that he did not keep a proper lookout, that the Ford automobile was out on the highway, not just approaching him but out in the highway before he ever saw it, or if he did see it, before he ever attempted to slow down or pass, that the whole left side of the highway was there open for him to pass on, and that he was negligent and that such negligence was a proximate cause of injury to the defendant Helms, it would be your duty to answer the sixth issue YES; if you are not so satisfied, you would answer it NO."

The quoted instruction was erroneous and prejudicial to defendant Helms in that its effect was to require the jury to find plaintiffs guilty of all the acts of negligence detailed by the court in order to answer the sixth issue in favor of defendant Helms. Andrews v. Sprott, 249 N.C. 729, 107 S.E.2d 560; Krider v. Martello, 252 N.C. 474, 113 S.E.2d 924. The instruction placed upon defendant Helms the burden of establishing (1) that Widenhouse, Jr., was operating his automobile at a speed in excess of sixty miles per hour, (2) that he did not keep a proper lookout, (3) that the Ford was out on the highway before he saw it or, if he had seen it, before he attempted to slow down or pass, and (4) that the whole left side of the highway was open for him to pass on. Paraphrasing the language of Higgins, J., in Andrews v. Sprott, supra: Defendant Helms was entitled to have the jury pass on the question whether the evidence showed the plaintiffs, in any of the particulars alleged, had breached a legal duty which they owed to defendant Helms, and if so, whether such breach proximately caused his injury and damage.

It is noted: The first issue, which was answered in favor of Helms, is in effect a contributory negligence issue in respect of Helms' counterclaim(s) against plaintiffs. Hence, a new trial as to all issues between plaintiffs and Helms is awarded.

With reference to the third (contributory negligence) issue, the court, after reviewing contentions, instructed the jury as follows:

"Now, the Court instructs you as a matter of law on the third issue, if you come to it, if you are satisfied from the evidence and by its greater weight that the plaintiff Widenhouse, Jr. was operating his automobile on the highway without keeping a lookout as to whether an automobile was coming on the highway or not, or that, seeing the automobile, that he came on when he could have slowed down and stopped after he saw that the automobile was out in the highway and kept coming at such speed and put on his brakes in such a manner that he was injured and the automobile in which he was riding was damaged, that that was negligence and that such negligence was one of the proximate causes of the injury to himself and damage to the automobile, it would be your duty to answer the third issue YES. If you are not so satisfied, you would answer it NO."

Each defendant excepted to and assigns as error (1) the quoted excerpt and (2) "(t)he failure of the Court to comply with the requirements of G.S. 1-180 in that it failed to explain and apply the law relating to speed for the jury's consideration on the issue of contributory negligence."

The maximum speed limit on U. S. Highway No. 601 was 60 miles per hour. On direct examination Widenhouse, Jr., testified he was traveling "about 60 miles an hour." On cross-examination he testified he so advised the investigating patrolman; and in response to the patrolman's inquiry, "Weren't you going any faster?" stated he "couldn't possibly have been going over 70 miles an hour at the most." The patrolman testified he observed skid marks (black marks on the pavement) extending 210 feet south "from the point of impact." The patrolman also testified Widenhouse, Jr., had stated to him "that he could have been traveling from 60 to 70 miles an hour, that he had been traveling that fast previously down the road prior to that time, but he couldn't say what speed he was running when the collision occurred." The foregoing testimony, when considered with evidence as to the force of the impact, the damage to the cars and their course of travel after the collision, was sufficient to support a finding that Widenhouse, Jr., was operating the Imperial at an unlawful and excessive speed.

Under the court's instructions, the third issue was to be considered by the jury only in the event the jury, by answering the first or second issue "Yes," had found the driver of the Ford guilty of actionable negligence in entering upon the highway from the private drive. Widenhouse, Jr., testified he was 200 feet south of the private drive when the Ford entered the highway. Evidence offered by defendants tended to show the Imperial was not in sight when the Ford entered the highway. Defendants relied largely on their allegations and the evidence as to the speed of the Imperial as a basis for their contention that Widenhouse, Jr., was guilty of contributory negligence. Hence, whether the Imperial was traveling at an unlawful and excessive speed and, if so, whether Widenhouse, Jr., after he saw or should have seen the Ford entered the highway from the private drive, was unable on account of such unlawful and excessive speed to avoid striking the Ford, were material questions in the determination of the third issue. We are of opinion, and so decide, that the quoted instruction, although containing an incidental reference to speed, did not sufficiently "declare and explain the law arising on the evidence given in the case" as required by G.S. § 1-180. For prejudicial error in this respect, defendants are entitled to a new trial.

It is noted: Although the law and facts pertinent to the third and sixth issues were substantially the same, there was, as indicated above, a variance between the instructions given with reference thereto.

Plaintiffs contend the charge when considered contextually is free from prejudicial error and that the designated portions of the court's instructions, if erroneous, did not mislead or confuse the jury. Whether caused by erroneous instructions or otherwise, it seems the jury was uncertain and confused.

It is noted that the jury, after finding the Imperial was damaged by the negligence of defendant Yow, answered the fourth issue "None." The uncontradicted evidence was that this 1960 Imperial, biggest of the Imperials and having 350 h. p., was practically new, had been in use only three or four months and had been driven about three thousand miles; that its reasonable market value before the collision was $5,200.00 or more and its reasonable market value after the collision was $1,000.00; and that it was not repaired but sold as junk. Indeed, a photograph offered in evidence by defendants shows the Imperial was greatly and extensively damaged.

It is noted further that, when the jury first returned and presented the issues to the court, the court stated he could not accept the verdict. The record does not show the jury's answers. After further instructions, the jury again deliberated and returned the verdict now appearing in the record. Suffice to say, the incident tends to show the jury was confused and had not understood the court's instructions.

For the reasons stated, the verdict and judgments are vacated and defendants are awarded a new trial.

New trial.