Dove v. Cain

148 S.E.2d 611 (1966) 267 N.C. 645

Gladys Trogden DOVE
v.
Levi Clarence CAIN, Jr., and Shelby Jean Kinlaw.

No. 698.

Supreme Court of North Carolina.

June 16, 1966.

Grady & Clark, Elizabethtown, for plaintiff, appellant.

Hester & Hester, Elizabethtown, for defendants, appellees.

EMERY B. DENNY, Emergency Justice.

The plaintiff assigns as error the following portion of the court's charge to the jury: "That she (Shelby Jean Kinlaw) saw no signal nor no turn indicator or no signal of any kind; and that plaintiff suddenly stopped her automobile in front of defendants' automobile, and that defendants' automobile struck the plaintiff's automobile in the center of the rear with the left front fender and bumper of the defendants' automobile * * * That the defendant Clarence Cain, Jr., was driving prior to this collision and before the collision down the road at a speed of 50 to 55 miles per hour; that the plaintiff suddenly stopped in front of him without giving any signal whatever."

It is apparent that the able and conscientious trial judge who tried this case below inadvertently overlooked the fact that there is no evidence tending to show that the plaintiff stopped her car suddenly in front of the defendants' car.

The defendants' evidence does not support their allegations in this respect. The defendants' evidence is unequivocally to the effect that there was nothing to have prevented the defendants from seeing the Dove car for more than a mile and that plaintiff's car was already stopped when defendant Shelby Jean Kinlaw first saw it. The defendant Kinlaw also testified, "I think Mr. Cain and I both realized it was stopped at the same time."

Where the court in its charge submits to the jury for their consideration facts material to the issue, which were no part of the evidence offered, it constitutes prejudicial error. State v. McCoy, 236 N.C. 121, 71 S.E.2d 921; Darden v. Leemaster, 238 N. C. 573, 78 S.E.2d 448; State v. Alston, 228 N.C. 555, 46 S.E.2d 567; Curlee v. Scales, 223 N.C. 788, 28 S.E.2d 576; Cummings v. Queen City Coach Co., 220 N.C. 521, 17 S.E. 2d 662; Smith v. Stanfield Hosiery Mill, 212 N.C. 661, 194 S.E. 83.

The plaintiff is entitled to a new trial, and it is so ordered.

New trial.

MOORE, J., not sitting.