Hardee v. York, 531

• Decision Date: 12 June 1964
• Docket Number: No. 531,531
• Citation: 136 S.E.2d 582,262 N.C. 237
• Parties: Jo Nita G. HARDEE v. Charles Worth YORK.
• Court: North Carolina Supreme Court

Page 582

136 S.E.2d 582

262 N.C. 237

Jo Nita G. HARDEE v. Charles Worth YORK.

No. 531

Supreme Court of North Carolina.

June 12, 1964

Miller & Beck, Asheboro, for plaintiff, appellant.

Smith, Moore, Smith, Schell & Hunter and Richmond G. Bernhardt, Jr., Greensboro, for defendant, appellee.

MOORE, Justice.

There are eleven assignments of error. We discuss some of these under two general headings.

I

After the jury was selected but before any evidence was introduced, the judge gave the jury certain preliminary instructions, apparently on the theory that the jurors were unfamiliar with court proceedings and that general instructions as to what to expect would be helpful to them in performing their duties. He explained to them that they were the sole triers of the ultimate facts, the order in which the trial would proceed, the presentation of evidence, crossexamination, arguments of counsel and the judge's charge. He cautioned them that his rulings on objections to evidence should not be considered as expressions of opinion. He defined burden of proof, greater weight of the evidence, negligence and proximate cause. Plaintiff contends that a pretrial charge is, as a matter of procedure, erroneous for that it amounts to a declaration of legal principles in the abstract. Plaintiff further contends that there was prejudicial error in two specific aspects of the preliminary instructions. First, there is a variance between the definition of proximate cause given in the preliminary instruction and that given in the charge proper, in that in the former there is no mention of foreseeability as an element of proximate cause, but there is in the latter. Second, the judge defined 'burden of proof' and 'greater weight of the evidence' in the pretrial charge, but not in the charge proper, and in the latter charge the judge said: 'Now, if there is any member of the jury who would like for me to explain again what is meant by the burden of proof and greater weight of the evidence, if you will indicate it by raising your hand I will be glad to do it. Since no one has indicated, I understand that you all understand what is meant by those terms.'

If the court erred in the specific instances mentioned, the errors were not prejudicial to plaintiff. (1) If, from the preliminary instruction, the definition of proximate cause was construed by the jury as permitting them to predicate a verdict upon a finding that defendant's negligence proximately caused the accident, even though the accident and injury were not reasonably foreseeable, the error was in plaintiff's favor, placed upon her a lighter burden and was therefore not prejudicial. (2) In the charge proper the court said: 'Now the burden of proof is upon the plaintiff on both of those questions (issues), that is, the burden of satisfying you by the greater weight of the evidence that those questions should be answered in her favor. ' This was sufficient. The burden of proof is a substantial right, and the failure of the charge to properly place the burden of proof is reversible error. Tippite v. Atlantic Coast Line R. R., 234 N.C. 641, 68 S.E.2d 285; Crain v. Hutchins, 226 N.C. 642, 39 S.E.2d 831; Haywood v. Home Insurance Co., 218 N.C. 736, 12 S.E.2d 221. But when the court correctly places the burden of proof and states the proper intensity of the proof required, the court is not required to define the term 'greater weight of the evidence' in the absence of a prayer for special instructions. Bank of Varina v. Slaughter, 250 N.C. 355, 108 S.E. 2d 594; Arnold v. State Bank & Trust Co., 218 N.C. 433, 11 S.E.2d 307; Wilson v. Inter-Ocean Casualty Co., 210 N.C. 585, 188 S.E. 102. Here the charge proper placed the burden of proof on the plaintiff, stated the intensity of the proof required, and there was no request for further definition of the term 'greater weight of the evidence.'

After careful search we have been unable to find any statute or judicial decision, and none has been called to our attention, which either authorizes or prohibits a pretrial charge. It is clearly contrary to the usual practice in this jurisdiction. However, we take note of the fact that some years ago booklets were prepared and in some of the trial courts distributed to jurors called for service, explaining in a general way the functions and duties of jurors. Whether this practice has continued we have no information. We neither condemn nor approve pretrial charges. If prejudicial error results, the offended party may take advantage thereof on appeal. The duty of a trial judge with respect to instructions to jurors is that 'he shall declare and explain the law arising on the evidence. ' G.S. § 1-180. Declaration of legal principles in anticipation that they will arise on the evidence may conceivably lead to serious error. It is error to charge on an abstract principle of law not supported by the evidence. Dunlap v. Lee, 257 N.C. 447, 450, 126 S.E.2d 62; McGinnis v. Robinson, 252 N.C. 574, 114 S.E.2d 365. We are of the opinion, however, that trial judges should have the utmost freedom of action in conducting trials so long as litigants are not prejudiced, positive rules of procedure are not violated, and no injustice is done.

II

Plaintiff excepts to the following portion of the charge proper:

'Now, there has been a conflict in the evidence as to whether or not there was ice on the street at the time of the accident in question; so with respect to this aspect of the case, the Court...