Arnold v. Merchants Distributors, Inc.

HEDRICK, Judge.

By their first assignment of error, based on an exception to an order dated 30 April 1973, defendants contend the court erred in denying their motion to be allowed to amend their answers to plead contributory negligence on the part of plaintiffs as passengers in the truck being driven by Hutchinson. It will be noted that the order denying the motion was entered subsequent to the entry of the judgment of the case in Catawba County, where the question of Hutchinson’s negligence had been determined in his favor as the driver of the truck in which plaintiffs were riding. Likewise, it will be noted that the order denying the motion was entered prior to the first trial which resulted in a mistrial and was not renewed before the trial giving rise to the present appeal. A motion to amend the pleadings is addressed to the sound discretion of the trial court and is not reviewable upon appeal in the absence of a showing of abuse of discretion. Flores v. Caldwell, 14 N.C. App. 144, 187 S.E. 2d 377 (1972); Gifts, Inc. v. Duncan, 9 N.C. App. 653, 177 S.E. 2d 428 (1970). Clearly, there has been no showing in this case of an abuse of discretion. This assignment of error is without merit.

We next discuss defendants’ contention that the trial court erred in not granting defendants’ motion for a directed verdict. A review of the evidence presented leads us to conclude that the evidence introduced by plaintiffs was sufficient to withstand the motion for directed verdict and to require submission of the cases to the jury.

Defendants, by their assignment of error number 27, contend that the trial court erred in its charge to the jury. More specifically, the defendants argue that, although the trial court correctly stated the applicable law with regard to vehicles meeting on the highway, the trial court erred when it failed to apply this law to certain evidence introduced by the defendants. A careful examination of the charge discloses that the court did correctly declare and explain the law with respect to vehicles meeting on the highway, and did correctly and accurately apply this to plaintiffs’ evidence tending to show that defendant Lewis was driving on the wrong side of the highway. However, the defendants contended, and their evidence tended to show, that the driver of the vehicle in which plaintiffs were riding, not the defendants, was driving on the wrong side of tbe road at the time of the collision. Defendants now maintain that the trial court’s failure to apply the relevant law as to vehicles meeting on the highway to this evidence constitutes prejudicial error for which the defendants are entitled to a new trial.

In their answers and further defenses to plaintiffs’ complaints, the defendants, among other things, alleged that Mark S. Hutchinson, the deceased driver of the truck in which plaintiffs were riding, was driving on the wrong side of the highway at the time of the accident. At trial the defendants offered the testimony of two witnesses, defendant Lewis (driver of defendant MDI’s truck) and Patrolman Burns (the investigating officer) in support of this allegation. Their testimony tended to establish that defendant Lewis was driving in the proper lane at the time of the accident, and that the truck driven by Hutchinson in which the plaintiffs were riding, was across the center line of the highway at the time of the collision. While defendants submit that the trial court erred in its charge in not applying the law to the defendants’ evidence, the plaintiffs insist that the defendants cannot now be heard to complain that the trial court erred, since the defendants did not make a special request that such instruction be given.

“It is the duty of the court to charge the law applicable to the substantive features of the case arising on the evidence, without special request, and to apply the law to the various factual situations presented by the conflicting evidence.” 7 Strong, N. C. Index 2d, Trial, § 33, pp. 324-5.

We are of the opinion that the defendants were entitled to have the applicable law applied to the evidence which they introduced without having to make a request for a special instruction. For error in not doing so, the defendants must be afforded a new trial. It was crucial to defendants’ case to have the trial court apply the law relating to vehicles meeting on the highway to the relevant evidence defendants introduced, as this evidence tended to sustain defendants’ contention that they were not actionably negligent. Faison v. Trucking Co., 266 N.C. 383, 146 S.E. 2d 450 (1965). Therefore, the defendants are entitled to a new trial.

Defendants have brought forward other assignments of error which we do not discuss inasmuch as they are not likely to recur upon retrial.

New trial.

Judges Campbell and Baley concur.