Barnes v. Teer

• Decision Date: 28 June 1941
• Docket Number: 110.
• Parties: BARNES v. TEER et al.
• Court: North Carolina Supreme Court

15 S.E.2d 379

219 N.C. 823

BARNES v. TEER et al.

No. 110.

Supreme Court of North Carolina

June 28, 1941

For former opinion, see 218 N.C. 122, 10 S.E.2d 614.

Heazel Shuford & Hartshorn, of Asheville, for petitioner-defendant.

Sale Pennell & Pennell, of Asheville, for respondent-plaintiff.

STACY Chief Justice.

The case was brought back because of an alleged oversight in disposing of the following question presented by the eleventh exception: In an action involving a highway injury, where there are statutes on the subject, some of evidentiary significance, and the general principles of the common law are also applicable, is it a sufficient compliance with the provisions of C.S. § 564 for the trial court to instruct the jury on the general principles of negligence and contributory negligence without any reference to the pertinent statutes?

In originally upholding the judgment, this question was inadvertently answered sub silentio in the affirmative. The authorities are to the contrary. Kolman v. Silbert, 219 N.C. 134, 12 S.E.2d 915; Smith v. Bus Co., 216 N.C. 22, 3 S.E.2d 362; Spencer v. Brown, 214 N.C. 114, 198 S.E. 630; Williams v. Coach Co., 197 N.C. 12, 147 S.E. 435, and Bowen v. Schnibben, 184 N.C. 248, 114 S.E. 170, 171. These cases all deal with the question here presented. They are at one in holding that the duty of the judge to declare and explain the law arising upon the evidence in a case means that he shall declare and explain the statutory law as well as the common law arising thereon.

Speaking directly to the point in the case last cited, it was said: "*** where a statute appertaining to the matters in controversy provides that certain acts of omission or commission shall or shall not constitute negligence, it is incumbent upon the judge to apply to the various aspects of the evidence such principles of the law of negligence as may be prescribed by statute, as well as those which are established by the common law".

The latest expression on the subject is to be found in Kolman v. Silbert, supra [219 N.C. 134, 12 S.E.2d 916], decided January 31, 1941: "In automobile cases where the alleged negligence rests in the violation of one or more of the provisions of the law governing the operation of motor vehicles enacted, designed and intended to protect life, limb and property, it is mandatory that the Judge in his charge shall state, in a plain and correct manner, the evidence in the case and declare and apply the pertinent provisions of the Motor Traffic Law."

It is in evidence that the plaintiff was driving down a steep mountain road, then under construction, and covered with loose crushed stone, 4 or 5 inches deep. Plaintiff was familiar with the road and its condition. He knew the defendant was at work there with trucks and other machinery. Defendant's truck, loaded with stone, was proceeding up the hill, an 8% grade. The plaintiff says he did not see the truck until within 30 feet of it, that it was on the wrong side of the road. The plaintiff ran onto the soft shoulder in order to avoid a collision, his car turned over, and he was injured.

There is evidence that plaintiff was driving "real fast", as he came around the curve and down the grade, "swinging around--the stone was flying. He was making around 50 miles an hour".

The plaintiff testified: "As we rounded the curve we met the truck right in the face. *** I put on my brakes when I first saw the truck. I didn't stop; it wouldn't stop, wouldn't hold on gravel. *** I was going 15 miles an hour when I first saw the truck. *** The defendant's truck struck me with his rear end as he attempted to pull out of the way".

The defendant's evidence tends to show that the plaintiff's car did not collide with the truck at all, but passed the truck, plowed into the soft shoulder, and was turned over when the plaintiff undertook to cut sharply back into the graveled portion of the highway.

From the foregoing it appears that in respect of the issue of contributory negligence (which issue is inappropriately worded) there is evidence tending to show the plaintiff was traveling in excess of the speed limits set out in the Motor Vehicle Law, or at a speed greater than was reasonable and prudent under the conditions then existing, which, by the statute, is made prima facie evidence of negligence, or that the speed is not reasonable or prudent and that it is unlawful. Chap. 407, Public Laws 1937, Sec. 103. Morris v. Johnson, 214 N.C. 402, 199 S.E. 390. The judge in his charge to the jury made no reference to any of the applicable provisions of the Motor Vehicle Law, notwithstanding the defendant's plea and the evidentiary significance of such provisions. Where the issue of liability is sharply disputed, as it is on the instant record, the parties are entitled to have the Court hew to the line and let the chips fall wherever they may. Such was the holding in Robinson v. Transportation Co., 214 N.C. 489, 199 S.E. 725; Farrow v. White, 212 N.C. 376, 193 S.E. 386; Orvis Co. v. Holt-Morgan Mills, 173 N.C. 231, 91 S.E. 948; Matthews v. Myatt, 172 N.C. 230, 90 S.E. 150. The decisions in Ryals v. Carolina Contracting Co., 219 N.C. 479, 14 S.E.2d 531, Mack v. Marshall Field & Co., 218 N.C. 697, 12 S.E.2d 235, and Smith v. Kappas, 15 S.E.2d 375, decided herewith, are likewise in full support of this view.

The conclusion heretofore reached that the judgment should be affirmed will be vacated and the cause remanded to the Superior Court of Buncombe County for a new trial. Ch. 117, Public Laws 1941.

Petition allowed.

SEAWELL CLARKSON, and DEVIN, JJ., dissenting.

CLARKSON, Justice (dissenting; to petition to rehear, which was allowed).

This case is reported in 218 N.C. 122, 10 S.E.2d 614. I write fully so the case can be understood.

The material allegations of the complaint are as follows:

"That on or about said 21st day of January, 1939, while the plaintiff was driving his automobile in a careful and lawful manner along said highway and on the right-hand side thereof, after turning a sharp curve in said highway, the truck, hereinbefore mentioned, owned by the defendant and operated by the defendant's agent, servant and employee, and while acting in the scope of his employment, approached said curve in a fast, dangerous and reckless manner on the wrong, or left-hand side of said highway, completely blocking plaintiff's right of proceeding down, along and over said highway, whereupon the plaintiff endeavored to avoid a collision with the defendant's truck, but notwithstanding his desperate efforts to avoid a collision, the defendant's truck struck the automobile of the plaintiff, knocking the same over on a soft shoulder which gave way, causing the plaintiff's automobile to slide off a steep embankment, turning it completely over and seriously injuring and damaging plaintiff as hereinafter more specifically set forth.

"That the specific acts of negligence which were the sole and proximate cause of the plaintiff's injuries and damage are:

"(a) The defendant carelessly, negligently and recklessly operating said automobile on said State highway in violation of the laws of the State of North Carolina.

"(b) The defendant carelessly, negligently and recklessly operating his automobile on the wrong side of the highway and particularly when approaching a sharp curve along a highway in process of construction, with soft shoulders along a steep embankment.

"(c) The defendant carelessly, negligently and recklessly failed to sound any horn or give other audible warning of the approach of his truck when approaching a sharp curve.

"That as a result of the defendant's negligence, the plaintiff's automobile which was of the reasonable value of $400 was practically destroyed.

"That by reason of the negligent acts of the defendant the plaintiff was seriously and permanently disabled and injured," setting same forth in detail. Prayer for damages for personal injury. The defendant denied negligence and set up the plea of contributory negligence.

The evidence on the part of plaintiff sustained the allegations of the complaint. The evidence of the defendant was to the contrary. The jury answered all the issues of negligence and contributory negligence in favor of plaintiff and awarded damages, as follows:

"1. Was the plaintiff injured by the negligence of the defendant as alleged in the complaint? A. Yes.

"2. Was the plaintiff guilty of contributory negligence as alleged in the defendant's answer? A. No.

"3. What damages, if any, is the plaintiff entitled to recover of the defendant? A. $5,000.00."

The case was tried in the General County Court of Buncombe County, N. C., before Judge J. P. Kitchen. From the judgment rendered in the General County Court of Buncombe County, the defendant made numerous exceptions and assignments of error and appealed to the Superior Court. The Superior Court overruled these exceptions and assignments of error and in the judgment of the General County Court of Buncombe County there was found to be no error. The defendant excepted and assigned error to the judgment of the Superior Court, and made numerous exceptions and assignments of error and appealed to the Supreme Court. This Court affirmed the judgment of the Court below.

I have read with care the former opinion and think that it is correct, and the rehearing opinion incorrect. The case is not in the least a complicated one. It grew out of a collision between the plaintiff's Ford automobile and the defendant's truck. It was mainly an issue of fact for a jury to determine.

The evidence was to the effect that plaintiff and his companion were in a Ford car going down the mountain, and defendant's truck, on the wrong side of the road, going up the mountain, ran into them. Pl...