Hunt v. Carolina Truck Supplies, Inc.

146 S.E.2d 84 (1966) 266 N.C. 314

Walter G. HUNT
v.
CAROLINA TRUCK SUPPLIES, INC.
Rosa L. DAVIS
v.
CAROLINA TRUCK SUPPLIES, INC.
Johnsie D. HUNT
v.
CAROLINA TRUCK SUPPLIES, INC.

No. 538.

Supreme Court of North Carolina.

January 14, 1966.

Webb, Lee & Davis, Rockingham, for plaintiff appellees.

Charles T. Myers, Charlotte, for defendant appellant.

BOBBITT, Justice.

All the evidence tends to show the collision, which was between the front of the Cadillac and the right side of the trailer, occurred on Hunt's side of the two-lane highway; that, as the Hunt eastbound Cadillac and defendant's westbound tractor-trailer approached each other, the tractor-trailer crossed to its left of the center of #74 and jackknifed, stopping with the front of the tractor in the ditch along the south shoulder and with the trailer across the lanes (particularly the lane for eastbound traffic) of #74; and that it was or had been "drizzling rain" and #74 was wet.

Evidence offered by plaintiffs tends to show there was no westbound vehicle in front of the tractor-trailer as it approached the point of collision.

Defendant's assignment of error directed to the court's denial of its motion(s) for judgment of nonsuit is without merit. There was ample evidence to require submission of the case to the jury.

With reference to the first (negligence) issue, the court, after discussing each of the alleged specifications as to defendant's negligence, instructed the jury as follows: "(I)f the plaintiffs have satisfied you by the greater weight of the evidence that the defendant's driver drove at an excessive speed under the circumstances existing, or that he failed to maintain a proper lookout, or that he failed to maintain proper control, or that he drove the vehicle without exercising due care, or that he failed to drive on his right-hand side of the highway, if the plaintiffs have satisfied you by the greater weight of the evidence that the defendant's driver was negligent in any one or more of those respects, and has further satisfied you by the greater weight of the evidence that such negligence not only exists, but that such negligence was the proximate cause or one of the proximate causes of the accident and the injury in question, then it would be your duty to answer this first issue in favor of the plaintiffs, and you would answer the first issue in each of these cases, the three cases, ``Yes.' If the plaintiffs have failed to carry that burden of proof and have failed to so satisfy you by the greater weight of the evidence, then your answer must be for the defendant, and you would answer the first question in each case, ``No.'" (Our italics.)

Defendant excepted to this portion of the court's instructions.

The court made no reference to defendant's plea of sudden emergency or evidence pertaining thereto at any time during the instructions relating to the first (negligence) issue.

After instructing the jury with reference to the second (contributory negligence) issue in the Hunt cases, the court, without relating it to any particular issue, gave the jury a correct general instruction relating to the sudden emergency doctrine.

Although it is well established a charge must be considered and interpreted contextually, 1 Strong, N.C. Index, Appeal and Error § 42, we are constrained to hold that the failure to relate defendant's plea of sudden emergency and the evidence pertinent thereto to the first issue was erroneous and prejudicial. The jury having been instructed explicitly to answer the first issue, "Yes," if they found, inter alia, that defendant's tractor-trailer was operated to the left of the center of the highway, and that such action proximately caused the collision and resulting personal injuries, it cannot be assumed the jury would understand that this explicit instruction was modified in any way by the subsequent general instruction relating to the doctrine of sudden emergency.

The more serious question is whether defendant's evidence was sufficient to entitle him to any instruction relating to the doctrine of sudden emergency. To answer this question, we must consider the evidence in the light most favorable to defendant.

There was evidence "(i)t was kindly dusky, not just black dark, but it was dusky." The tractor-trailer "had its lights on." The evidence is silent as to whether the lights of the Cadillac were burning.

Smith's testimony, when considered in the light most favorable to defendant, tends to show: The tractor-trailer was traveling on its right side of #74. The brakes "were working fine." The headlights were on and working. The windshield wipers "were running." When four car-lengths away, Smith first noticed a car, stopped in front of him, when the operator "turned his lights on all of a sudden." The tractor-trailer was traveling 20-25 miles an hour. When Smith saw "the car up front," he applied his air brakes. Under ordinary conditions, the distance was such he could have stopped, but on account of the slippery condition of the highway at this particular point, caused by a coating of clay that had spilled onto the highway from trucks in the area, the tractor-trailer, upon application of the brakes, swerved to the left and jackknifed.

While inferences may be drawn from Smith's testimony, particularly that elicited by plaintiffs on cross-examination, tending to show that the sudden emergency, if any, that confronted Smith was attributable, at least in part, to his own negligence, we are constrained to hold that these matters were for jury determination under a proper instruction applying the doctrine of sudden emergency to the evidence as related to the first (negligence) issue.

Since a new trial is awarded on the ground indicated, we do not consider defendant's other assignments of error. The questions presented may not arise at the next trial.

New trial.