Barnes v. Caulbourne
| Citation | 240 N.C. 721,83 S.E.2d 898 |
| Decision Date | 13 October 1954 |
| Docket Number | No. 242,242 |
| Court | United States State Supreme Court of North Carolina |
| Parties | James Mallie BARNES, Administrator of the Estate of James Arnold Barnes, deceased, v. Nelson E. CAULBOURNE. |
Wellons & Wellons, Hooks & Britt, Smithfield, for plaintiff-appellant.
Shepard & Wood, Smilthfield, for defendant-appellee.
It is noteworthy that the evidence upon which plaintiff relied tends to show a factual account of the tragic accident materially at variance with the allegations of the complaint; but, on plaintiff's appeal from an adverse jury verdict, we need not consider whether judgment as of nonsuit should have been entered on the ground of variance between allegation and proof. A plaintiff must make out his case secundum allegata. Whichard v. Lipe, 221 N.C. 53, 19 S.E.2d 14, 139 A.L.R. 1147; Suggs v. Braxton, 227 N.C. 50, 40 S.E.2d 470.
Plaintiff's assignments of error (1-5) challenge excerpts from the charge, not on the ground that they are incorrect as general statements of law, but on the ground that the court failed to 'declare and explain the law arising on the evidence given in the case' as required by G.S. § 1-180. Citizens National Bank v. Phillips, 236 N.C. 470, 73 S.E.2d 323, and cases cited. This failure, plaintiff contends, relates to instructions bearing upon (1) the legal duty of defendant to plaintiff's intestate, a seven year old child, and (2) the applicability of the doctrine of sudden emergency to the facts disclosed by the evidence in this case.
It is noted that plaintiff tendered no requests 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, and cases cited. 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 instructions. State v. Gordon, 224 N.C. 304, 30 S.E.2d 43, and cases cited.
Strictly speaking, two elements compose the concept of negligence: first, legal duty, and second, a failure to exercise due care in the performance thereof. Due care always means the care an ordinarily prudent person would exercise under the same or similar circumstances and when charged with like duty. Legal duty, however, varies according to subject matter and relationships. Thus, when a motorist observes, or should observe, children on, near or approaching a highway, he is under the duty of exercising greater vigilance and caution because of their immaturity and impulsive nature, that is, care commensurate with the dangers inherent in the circumstances then existing, and an ordinarily prudent person will use due care in relation to such duty. Rea v. Simowitz, 225 N.C. 575, 35 S.E.2d 871, 162 A.L.R. 999.
The court's instructions bearing upon defendant's legal duty to plaintiff's intestate, a seven year old boy, are substantially in accord with the applicable rule as stated by this Court. Greene v. Mitchell County Board of Education, 237 N.C. 336, 75 S.E.2d 129; Hawkins v. Simpson, 237 N.C. 155, 74 S.E.2d 331; Hughes v. Thayer, 229 N.C. 773, 51 S.E.2d 488; Sparks v. Willis, 228 N.C. 25, 44 S.E.2d 343; Rea v. Simowitz, supra; Yokely v. Kearns, 223 N.C. 196, 25 S.E.2d 602.
Bearing upon the applicability of the doctrine of sudden emergency, suffice it to say that there was ample basis in the evidence for a finding that the defendant was confronted suddenly by an emergency situation, not caused in whole or in part by his own negligence. Hence, the instructions were instructions of law arising on the evidence and in accordance with the applicable rule. Henderson v. Henderson, 239 N.C. 487, 80 S.E.2d 383; Goode v. Barton, 238 N.C. 492, 78 S.E.2d 398; Morgan v. Saunders, 236 N.C. 162, 72 S.E.2d 411; Sparks v. Willis, supra; Hoke v. Atlantic Greyhound Corp., 227 N.C. 412, 42 S.E.2d 593, and cases cited.
There was no allegation or issue relating to contributory negligence on the...
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