Brown v. Boren Clay Products Co.
| Decision Date | 23 July 1969 |
| Citation | 5 N.C.App. 418,168 S.E.2d 452 |
| Court | North Carolina Court of Appeals |
Craighill, Rendleman & Clarkson, by J. B. Craighill, Charlotte, for plaintiff appellant.
Carpenter, Golding, Crews & Meekins, by John G. Golding and Michael K. Gordon, Charlotte, for defendant appellee.
The plaintiff makes numerous assignments of error, but we will refrain from discussing many of them as we find it necessary to award a new trial, and the same questions are unlikely to arise again.
The plaintiff assigns as error the refusal of the court to set the verdict aside because one of the jurors during a night recess conducted some experiments with regard to viewing vehicles on the highway some thirty minutes after sunset. The record discloses that the trial judge went into this with care and concluded that any impropriety in this regard had not affected the verdict. This was a discretionary matter with the trial judge, and we to not think the record discloses any abuse of the discretion of the trial judge.
There is no merit in this assignment of error.
Both the pleadings and the evidence brought into sharp focus not only the desirability but the necessity of having headlights burning on the respective vehicles at the time of collision. The plaintiff claimed that she did have the headlights burning on her vehicle and that the defendant did not have lights burning on the truck and that as a result thereof, she was unable to see the truck and hence placed herself in a position where the collision occurred. The defendant on the other hand contended that at all times the lights on the truck were burning. It was stipulated and agreed that the collision occurred on the open highway where the maximum speed limit was 55 miles per hour for passenger vehicles and 45 miles per hour for trucks; and that the sun had set at 5:13 p.m. The plaintiff claimed the collision occurred some forty minutes after sunset and thus the statutory requirement with regard to headlights was applicable.
G.S. § 20--129(a) provided:
'When Vehicles Must be Equipped.--Every vehicle upon a highway within this State during the period from a half hour after sunset to a half hour before sunrise, and at any other time when there is not sufficient light to render clearly discernible any person on the highway at a distance of two hundred feet ahead, shall be equipped with lighted front and rear lamps as in this section respectively required for different classes of vehicles, and subject to exemption with reference to lights on parked vehicles as declared in § 20--134.' (As it read in 1966 at the time of the accident here involved and prior to the 1967 amendment.)
This is a safety statute enacted for the protection of persons and property. A violation of this statute is negligence Per se. Thomas v. Thurston Motor Lines, 230 N.C. 122, 52 S.E.2d 377; Oxendine v. Lowry, 260 N.C. 709, 133 S.E.2d 687.
It was incumbent upon the trial judge to instruct the jury with regard to the requirements of the statute as being the law applicable to the case and then to apply the law as thus given to the facts in question. Correll v. Gaskins, 263 N.C. 211, 139 N.E.2d 202.
The trial judge should have instructed the jury, even in the absence of request therefor, in substance, as follows: If the jury should find from the evidence and by its greater weight that the collision in question occurred more than a half hour after sunset and that at that time the defendant's truck did not have front lamps lighted as required by the statute, then such conduct on the part of the defendant would constitute negligence as a matter of law, and if the jury find by the greater weight of the evidence that such negligence was a proximate cause of the collision and the injuries and property damage sustained by the plaintiff, then the first issue should be answered, 'Yes'. In the instant case, the trial judge gave no instructions with regard to this statute requiring lighted front lamps and did not apply the law as contained in the statute to the facts. Because of this failure, the plaintiff is entitled to a new trial. Correll v. Gaskins, Supra.
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