O'Berry v. Perry, 193

• Decision Date: 15 December 1965
• Docket Number: No. 193,193
• Court: North Carolina Supreme Court
• Parties: Robert F. O'BERRY, Plaintiff, v. Linnie Donald PERRY, Defendant, and The Great American Insurance Company, Additional Defendant.

Page 321

145 S.E.2d 321

266 N.C. 77

Robert F. O'BERRY, Plaintiff, v. Linnie Donald PERRY, Defendant and The Great American Insurance Company, Additional Defendant.

No. 193.

Supreme Court of North Carolina.

Dec. 15, 1965.

Cherry & Cherry by Thomas L. Cherry, Ahoskie, for plaintiff appellee.

Pritchett & Cooke by J. A. Pritchett and Stephen R. Burch, Windsor, for defendant appellant.

SHARP, Justice:

Plaintiff alleged and offered evidence tending to show that, after dark, defendant drove a totally unlighted truck from a private drive onto the highway in front of his approaching automobile. Defendant's testimony was that at the time he entered the highway his parking lights were burning. After explaining to the jury the requirements of G.S. § 20-129 that during the period from a half an hour after sunset to a half an hour before sunrise, and at any other time when there is not sufficient light to render clearly visible any person on the highway at a distance of 200 feet ahead, every vehicle upon a highway shall be equipped with lighted front and rear lamps as required by law, the court gave the following instruction which defendant assigns as error: 'I instruct you, gentlemen, that the parking light is not a headlight, and is not a front light, and it is not a rear light, and not a light adapted for the use of driving, but is for the use which its name indicates.'

The function of a front light or headlight, defined by G.S. § 20-129 and G.S. § 20-131, is to produce a driving light sufficient, under normal atmospheric conditions, to enable the operator to see a person 200 feet ahead. The function of a parking light is to enable a vehicle parked or stopped upon the highway to be seen under similar conditions from a distance of 500 feet to the front of such vehicle.

The real cause of this collision, however, seems to have been the failure of defendant to yield the right of way to plaintiff as required by G.S. § 20-156(a). Plaintiff's headlights were burning and defendant saw him coming at the time he entered the highway. We perceive in the above instruction no prejudice to defendant.

Without objection, defendant testified on cross-examination as follows: 'I did not go into the Justice's Court and enter a plea of guilty of failing to yield the right of way before entering the highway. I did not have my son, Norman Perry, to come into court and do this for me. I did not object to it.' In recapitulating this evidence in the charge, the judge made the following statement which defendant assigns as error: 'On cross-examination he testified that with his knowledge his son pleaded him guilty before a Justice of the Peace for failing to yield the right of way.' Defendant contends that 'this is not supported by the record.'

In context, and without explanation--and none was forthcoming--defendant's justimony that 'he did not object to it' justifies the inference that defendant knew his son had entered a plea for him. If defendant, at that time, had deemed the judge's statement to be inaccurate, he should have called the error to his attention then and there in order to give the court opportunity to make correction. Star Manufacturing Co. v. Atlantic Coast Line R. Co., 222 N.C. 330, 23 S.E.2d 32. This defendant did not do; and his failure waived whatever error, if any, there might have been. Steelman v. Benfield, 228 N.C. 651, 46 S.E.2d 829.

Upon the coming in of the verdict, defendant moved to set it aside because, during the noon recess that day, a juror, G. H. Perry, had walked with plaintiff and his witness Askew from the courthouse to 'the barbecue place' for lunch. The record does not show when defendant acquired this information, but plaintiff makes no contention that defendant waived his right to object by failing to make complaint to the court until after verdict. See 89 C.J.S. Trial §§ 455, 483 (1955); Annot., Juror--Contact with Party, 55 A.L.R. 750, 764-65, Supplemental, Annot. 62 A.L.R.2d 300, 330.

The court conducted an immediate inquiry which revealed the following: Juror Perry encountered plaintiff and his witness Askew at the door. Perry shook hands with both and jokingly asked Askew what office he was running for. Plaintiff offered the juror a ride which he declined. The three then walked to...