Andrews v. Sprott

• Decision Date: 18 March 1959
• Docket Number: No. 246,246
• Citation: Andrews v. Sprott, 107 S.E.2d 560, 249 N.C. 729 (N.C. 1959)
• Parties: Anastasla ANDREWS v. T. Z. SPROTT.
• Court: North Carolina Supreme Court

Page 560

107 S.E.2d 560

249 N.C. 729

Anastasla ANDREWS v. T. Z. SPROTT.

No. 246

Supreme Court of North Carolina.

March 18, 1959

Bell, Bradley, Gebhardt & DeLaney by Ernest S. DeLaney, Jr., Charlotte, for plaintiff, appellant.

Craighill, Rendleman & Kennedy, Charlotte, for defendant, appellee.

HIGGINS, Justice.

The plaintiff, by her assignment of error No. 4, challenges the following portion of the court's charge: 'Now, ladies and gentlemen of the jury, if you find from the evidence and by its greater weight as I have defined that term to you, that the defendant operated his car at a reckless rate of speed, that he operated his car with defective brakes, that he failed to keep a proper lookout, and failed to keep his car under control, and if you find that such negligence was the proximate cause of the collision and the resulting injury, then it would be your duty to answer the first issue yes. Otherwise, it would be your duty to answer it no.'

The plaintiff argues she is prejudiced by the charge in two respects:

First, the court committed error in charging with respect to the defendant's operation of his car at a reckless rate of speed. Her objection seems to be valid. The complaint does not allege and the evidence does not show speed. It is error to charge on an abstract principle of law not supported by any view of the evidence. Worley v. Champion Motor Co., 246 N.C. 677, 100 S.E.2d 70; State v. McCoy, 236 N.C. 121, 71 S.E.2d 921; H. G. Williams & Co. v. Harris, 137 N.C. 460, 49 S.E. 954.

Second, the court charged in the conjunctive as to all the specific allegations of negligence upon which the plaintiff relied. The effect was to require the jury to find the defendant guilty of all the acts of negligence detailed by the court in order to answer the first issue in favor of the plaintiff. The charge, in the manner given, placed upon the plaintiff the burden of showing speed, defective brakes, failure to keep a proper lookout, and failure to keep his car under control. The plaintiff was entitled to have the jury pass on the question whether the evidence showed the defendant, in any of the particulars alleged, had breached a legal duty which he owed to the plaintiff, and if so, whether such breach proximately caused her injury and damage. Henderson v. Henderson, 239 N.C. 487, 80 S.E.2d 383; Aldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331; Ervin v. Cannon Mills Co., 233 N.C. 415, 64 S.E.2d 431. For additional cases, see Strong's North Carolina...