Foy v. Bremson

MORRIS, Judge.

This case must go back for a new trial on all issues. We do not discuss the error in admission and exclusion of evidence. Nor do we discuss all the errors in the charge because on retrial they may not recur. Although there are other prejudicial errors in the trial, one error in the charge is sufficiently prejudicial to require a new trial.

At the beginning of its charge, the court said “And, as to each issue, I’ll tell you which party has the burden of proof.” Only as to issue 5 — plaintiff’s contributory negligence — did the court do this.

In King v. Bass, 273 N.C. 353, 354, 160 S.E. 2d 97 (1968), the trial court had failed to instruct with respect to the burden of proof. The court, in granting a new trial, said,:

“This Court considered the duty of the trial judge to instruct on burden of proof in the case of Watt v. Crews, 261 N.C. 143, 134 S.E. 2d 199, wherein Denny, C. J., speaking for the Court, stated:

‘ “In Tippite v. R. R., 234 N.C. 641, 68 S.E. 2d 285, this Court said: ‘G.S. 1-180, as amended, requires that the judge “shall declare and explain the law arising on the evidence given in the case.” This places a duty upon the presiding judge to instruct the jury as to the burden of proof upon each issue arising upon the pleadings. It is said that “ ‘the rule as to the burden of proof is important and indispensable in the administration of justice. It constitutes a substantial right of the party upon whose adversary the burden rests; and, therefore, it should be carefully guarded and rigidly enforced by the court. S. v. Falkner, 182 N.C. 793, and cases cited.’ Hosiery Co. v. Express Co., 184 N.C. 478.” Coach Co. v. Lee, 218 N.C. 820, 11 S.E. 2d 841; Crain v. Hutchins, 226 N.C. 642, 39 S.E. 2d 831.’ ” ’

The trial court failed to give instructions as to the burden of proof on any of the issues. This omission violates a substantial right of appellants and constitutes prejudicial error.”

Plaintiff’s appeal — New trial.

Defendants’ appeal — New trial.

Judges Britt and Baley concur.