Payne v. Lowe

163 S.E.2d 74 (1968) 2 N.C. App. 369

William Roger PAYNE
v.
Matilda Lee LOWE and Roy James Lowe.

No. 6823SC354.

Court of Appeals of North Carolina.

September 18, 1968.

Whicker, Whicker & Vannoy, by J. Gary Vannoy, North Wilkesboro, for plaintiff appellee.

Hayes & Hayes, by Kyle Hayes, North Wilkesboro, and Ferree & Brewer, by Max Ferree, Wilkesboro, for defendant appellants.

BRITT, Judge.

Defendants' first assignment of error relates to the refusal of the trial judge to permit the feme defendant to state her opinion as to the speed of plaintiff's automobile. The record fails to disclose what her answer would have been if allowed to testify.

The exclusion of testimony cannot be held prejudicial when the record fails to show what the answer of the witness would have been had she been permitted to testify. 1 Strong, N.C. Index 2d, Appeal and Error, § 49. The assignment of error is overruled.

Defendants' second major assignment of error relates to the charge of the trial judge to the jury. They contend that G.S. § 1-180 was violated in that the trial judge failed to define the terms "highway" and "intersection," and treating the accident as if it had occurred at the intersection of a dominant highway and a servient highway. They further contend that the trial judge failed to charge on their contention that plaintiff was traveling on a private road and the legal effect of so doing.

G.S. § 1-180 requires the trial judge to declare and explain the law arising on the evidence given in the case, but further provides that he shall not be required to state such evidence except to the extent necessary to explain the application of the law thereto.

It is noted that defendants tendered no request for special instructions. Even so, a failure to charge the law on the substantive features of the case arising on the evidence is prejudicial error. Howard v. Carman, 235 N.C. 289, 69 S.E.2d 522. On the other hand, when the charge is in substantial compliance with the requirements of G.S. § 1-180, if a party desires further elaboration or explanation, he must tender specific prayers for instruction. Barnes v. Caulbourne, 240 N.C. 721, 83 S.E.2d 898.

Since the terms "highway" and "intersection" are not technical terms and are commonly understood, if additional instructions as to those terms were desired by defendants, a request should have been made. C. C. T. Equipment Co. v. Hertz Corp. and Contractors, Inc. v. Hertz Corp., 256 N.C. 277, 123 S.E.2d 802.

The evidence in the instant case did not support defendants' contention that the road upon which plaintiff was traveling was a private road. The evidence was clear that the lane of travel used by plaintiff was not barricaded. Furthermore, witnesses for both plaintiff and defendants testified to the use of the highway by the public. C. K. Smith, resident engineer of the State Highway Commission and called as a witness by defendants, testified that on the date of the accident Country Club Road on which the feme defendant was traveling was a "subservient" road to Highway 16 on which plaintiff was traveling. G.S. § 136-26 permits the Highway Commission to close a part or all of a highway during maintenance or construction, as is deemed necessary to be excluded from public travel. Here, the new highway had been paved, and although shoulder construction and erection of guard rails had not been completed, the northbound lane on which plaintiff was traveling was not being excluded from public travel.

Defendants contend that this case is governed by G.S. § 20-156(a) on the question of right-of-way and that the jury should have been instructed accordingly. This statute provides that "[t]he driver of a vehicle entering a public highway from a private road or drive shall yield the right-of-way to all vehicles approaching on such public highway." They argue that at the time of the accident the feme defendant was traveling on a public highway and that plaintiff, in effect, was traveling on a private road. As stated above, evidence tending to show that the road on which plaintiff was traveling was a private road is not sufficient to amount to a substantial feature of the case requiring an instruction.

Right-of-way in this case is governed by G.S. § 20-158(a), the pertinent portion of which provides as follows:

"The State Highway Commission, with reference to State highways, and local authorities, with reference to highways under their jurisdiction, are hereby authorized to designate main traveled or through highways by erecting at the entrance thereto from intersecting highways signs notifying drivers of vehicles to come to full stop before entering or crossing such designated highway, and whenever any such signs have been so erected it shall be unlawful for the driver of any vehicle to fail to stop in obedience thereto and yield the right-of-way to vehicles operating on the designated main traveled or through highway and approaching said intersection."

By the terms of the statute, the erection of stop signs on an intersecting highway is a method of giving the public notice that traffic on one is favored over the other and that a motorist facing a stop sign must yield. Kelly v. Ashburn, 256 N. C. 338, 123 S.E.2d 775. Evidence presented by plaintiff and defendants, even by the feme defendant herself, was to the effect that there was a stop sign on Country Club Road immediately east of the highway on which plaintiff was traveling.

We hold that the trial judge fairly stated the contentions of the parties supported by the evidence and that he substantially complied with G.S. § 1-180.

We have carefully considered all assignments of error asserted by defendants and they are overruled.

Affirmed.

BROCK and PARKER, JJ., concur.