Ryals v. Carolina Contracting Co

• Citation: 14 S.E.2d 531,219 N.C. 479
• Decision Date: 07 May 1941
• Docket Number: No. 237.,237.
• Parties: RYALS. v. CAROLINA CONTRACTING CO.
• Court: Supreme Court of Georgia

14 S.E.2d 531

219 N.C. 479

RYALS.

v.CAROLINA CONTRACTING CO.

No. 237.

Supreme Court of the State of Georgia

May 7, 1941.

CLARKSON and SEAWELL, JJ., dissenting.

Appeal from Superior Court, Johnston County; J. Paul Frizzelle, Judge.

Action by W. C. Ryals against the Carolina Contracting Company for injuries allegedly sustained through defendant's failure to give proper warning of the dangerous condition of a highway under construction. From a judgment for plaintiff, defendant appeals.

New trial.

Civil action for recovery for injury allegedly resulting from actionable negligence of defendant.

In the trial court, the evidence briefly stated tends to show that on 12 October, 1938, the date of injury to plaintiff, U. S. Highway No. 301, also numbered U. S. 70, between Smithfield and Selma in this State, had an old paved surface 18 feet in width; that defendant was engaged in constructing an additional strip of concrete 6 feet wide along and adjoining the west edge of said old pavement, and had finished same with exception of space 40 to 60 to 100 feet at the point where Buffalo Creek passes under the highway; that there was a concrete culvert under the highway through which the water of that creek flowed; that in said unfinished space the surface was 10 to 12 inches below the paved surface of the highway; that adjacent to this unfinished portion, the old pavement was intact to its full width, and open to traffic.

Plaintiff offered evidence tending to show that between seven and eight o'clock on the night of above date, while he was traveling north in his automobile, from Smithfield to Selma, at a rate of speed 30 to 35 miles per hour, along his right hand side of the old pavement, and approaching Buffalo Creek, an unidentified truck traveling south from the direction of Selma toward Smithfield, at a rate of speed 25 to 30 miles per hour, on its right hand side of the road, was also approaching Buffalo Creek; that each of them dimmed the lights on his vehicle; that suddenly the truck turned to its left side of the road, "coming across the corner of the road", into the lane in which plaintiff was travel-ing; that in order to avoid collision with the truck plaintiff drove his automobile on to the shoulder on his right side; that in doing so he lost control of it and in turning back onto the old pavement lost control and ran across the pavement in to the said unfinished space against the culvert on his left side of the road, thereby wrecking his automobile and causing the injury of which complaint is made.

Plaintiff further offered evidence tending to show that while he knew that the road had been under construction, there were then no warning signs or lights at Smith-field to indicate to him, or at Selma to indicate to the driver of the truck; that the road was still under construction; and that there were no barricades or lights at either end of the unfinished space in the strip on the west side of the road to warn of its existence; and that in approaching the place he assumed that it was completed.

Plaintiff further offered evidence tending to show that the unfinished space so blended with the road as to be unobservable to plaintiff and others traveling upon the highway, until within 40 or 60 feet of it.

On the other hand, defendant offered evidence tending to show that there were large signs it had placed at each end of the project, at Smithfield and at Selma, warning of danger on account of road being under construction, which signs were properly lighted by flambeaux, or Toledo torches; and that at Buffalo Creek there was a small barricade at each end of the unfinished portion and several feet in front of each there was a flambeau, or Toledo torch.

Plaintiff in his complaint alleges in substance that his injury was proximately caused by the negligence of defendant in failing to exercise ordinary care in the performance of its duty to provide adequate warning signs at the unfinished strip of pavement to indicate to the traveling public the danger there.

Defendant denies the allegations of negligence. On the other hand, defendant avers that proper warning signs, barricades and lights were provided, and pleads contributory negligence of plaintiff in bar of his right to recover.

The case was submitted to the jury upon issues as to negligence, contributory negligence and damage. From judgment on ad verse verdict, defendant appeals to Supreme Court and assigns error.

Wellons & Wellons, of Smithfield, and Royall, Gosney & Smith, of Goldsboro, for plaintiff appellee.

Abell & Shepard, of Smithfield, for defendant appellant.

WINBORNE, Justice.

When the evidence in the record on this appeal is taken in the light most favorable to plaintiff, giving to him the benefit of every reasonable intendment, we are of opinion that the case is one for the jury. Hence, exceptions to refusal of the court below to allow defendant's motions, aptly made, for judgment as in case of nonsuit are overruled. But there is error in the trial below.

The exceptions to the charge and to the failure to charge are well taken and meritorious. They are directed (1) to that portion of the charge which reads as follows: "The court has stated to you and has defined to you as clearly as it could, the principles of law applicable to these controverted questions. You are to bear them in mind and apply them to the facts and the evidence in this case", and (2) to the failure of the court to declare and explain the law, particularly pertaining to negligence, contributory negligence, concurring negligence, intervening or insulating negligence, and that relating to sudden emergencies, arising upon the evidence in the case as required by the provisions of C.S. § 564, which prescribes that the judge "shall state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon".

It is appropriate to pause here and to note that this statute C.S. § 564 had its inception in the year 1796, in an act of the Legislature entitled "An act to secure the impartiality of trial by jury, and to direct the conduct of judges in charges to the jury". As thus originally enacted section one of the act reads: "It shall not be lawful for any judge, in delivering a charge to the petit jury, to give an opinion whether a fact is fully or sufficiently proved, such matter being the true office and province of the jury; but it is hereby declared to be the duty of the judge in such case to state in a full and correct manner the facts given in evidence, and to declare and explain the law arising thereon." Iredell's Law 1796, Chapter 4, Sec. 1. The provisions of this act, in substantially identical language, have been brought down through successive subsequent legislative enactments by which codifications of the law have been adopted. See Potters Laws of North Carolina (1821) Vol. 1, Chapter 452, Sec. 1; Revised Statutes (1837) Chapter 31, Sec. 136; Revised Code (1854) Chapter 31, Sec. 130; Code of Civil Procedure (1868) Sec. 237; Battle\'s Revisal (1873) Chapter 17, Sec. 237; Code of 1883, Sec. 413; Revisal of 1905, Sec. 535; Consolidated Statutes of North Carolina 1919, Sec. 564. Charges in both civil and criminal actions are expressly included in the statute. See Code of 1883, Section 413, and succeeding citations supra.

Thus, it is seen that for one hundred and forty-five years the legislature of this State has seen fit to preserve this salutary statute, and, from time to time, to reiterate and approve its provisions of inhibition against the judge invading the province of the jury in the trial of an action, and prescribing his duty upon such trial with respect to the evidence and the law. The two provisions are linked together, and are of equal dignity. To fail to observe either is error. Moreover, referring to this statute in the case of State v. Newsome, 195 N.C. 552, 143 S.E. 187, 192, this Court speaking through Connor, J., said: "The wisdom of the policy upon which it was enacted and in accordance with which it has since been maintained as the law in this state is not for the courts to determine."

Furthermore, the decisions of this Court are uniform in holding that the failure of the presiding judge to declare and explain the law arising upon the evidence is and will be held for error. These are some of the cases: State v. Matthews, 78 N.C. 523; State v. Rogers, 93 N.C. 523; State v. Merrick, 171 N.C. 788, 88 S.E. 501; Hauser v. Forsyth Furniture Co., 174 N. C. 463, 93 S.E. 961; Nichols v. Champion Fibre Co., 190 N.C. 1, 128 S.E. 471; Wilson v. Wilson, 190 N.C. 819, 130 S.E. 834; Watson v. Sylva Tanning Co., 190 N.C. 840, 130 S.E. 833; Williams v. Eastern Carolina Coach Co., 197 N.C. 12, 147 S.E. 435; Spencer v. Brown, 214 N.C. 114; 198 S.E. 630; Smith v. Safe Bus Co., 216 N.C. 22, 3 S.E.2d 362; Mack v. Marshall Field & Co., 218 N.C. 697, 12 S.E.2d 235; Kolman v. Silbert, 219 N.C. 134, 12 S.E.2d 915.

"The statement of the general principles of law, without an application to the specific facts involved in the issue is not a compliance with the provisions of the statute". Nichols v. Champion Fibre Co., supra [190 N.C. 1, 128 S.E. 475]; Williams v. Eastern Carolina Coach Co., supra; Spencer v. Brown, supra; Mack v. Marshall Field & Co., supra.

In State v. Matthews, supra, it is said: "We think he [the judge] is required in the interest of human life and liberty, to state clearly and distinctly the particular issues arising on the evidence, and on which the jury are to pass, and to instruct them as to the law applicable to every state of the facts which upon the evidence they may reasonably find to be the true one. To do otherwise is to fail to 'declare and explain the law arising on the evidence, ' as by the Act of Assembly he is required to do. C. C.P. Sec. 237", now C.S. § 564.

Speaking to the question in State v. Merrick, supra [171 N.C. 788, 88 S.E. 505], Hoke, J., said: "The authorities are at one in holding that, both in criminal and civil...