Key v. Merritt-Holland Welding Supplies, Inc.

• Decision Date: 01 May 1968
• Docket Number: No. 533,MERRITT-HOLLAND,533
• Citation: 273 N.C. 609,160 S.E.2d 687
• Parties: Noah H. KEY and Burlene Key Moore, Administrators of the Estate of Astor Colon Key v.WELDING SUPPLIES, INC.
• Court: North Carolina Supreme Court

Page 687

160 S.E.2d 687

273 N.C. 609

Noah H. KEY and Burlene Key Moore, Administrators of the Estate of Astor Colon Key v. MERRITT-HOLLAND WELDING SUPPLIES, INC.

No. 533.

Supreme Court of North Carolina.

May 1, 1968.

Dock G. Smith, Jr., Robbins, and John Randolph Ingram, Asheboro, for plaintiff appellants.

Pittman, Staton & Betts, Sanford, for defendant appellee.

BOBBITT, Justice.

Since the first (negligence) issue was answered in favor of plaintiffs, errors, if any, in respect of evidence rulings or of portions of the charge pertinent to that issue are harmless. Wooten v. Cagle, 268 N.C. 366, 370, 150 S.E.2d 738, 740, and cases cited; Watson v. Stallings, 270 N.C. 187, 192, 154 S.E.2d 308, 311; Anderson v. Talman Office Supplies, 236 N.C. 519, 521, 73 S.E.2d 141, 142, and cases cited. Decision depends on whether there was prejudicial error in the court's instructions with reference to the second (contributory negligence) issue.

G.S. § 1--180 provides that 'the judge shall give equal stress to the contentions of the plaintiff and defendant in a civil action, and to the State and defendant in a criminal action.' Our decisions establish these propositions: '(A) trial judge is not required by law to give the contentions of litigants to the jury. State v. Colson, 222 N.C. 28, 21 S.E.2d 808; Rocky Mount Savings & Trust Co. v. Aetna Life Insurance Co., 204 N.C. 282, 167 S.E. 854. When, however, a judge undertakes to state the contentions of one party, he must give the equally pertinent contentions of the opposing party. Brannon v. Ellis, 240 N.C. 81, 81 S.E.2d 196; State v. Kluckhohn, 243 N.C. 306, 90 S.E.2d 768; In re Will of Wilson, 258 N.C. 310, 128 S.E.2d 601.' Denny, C.J., in Watt v. Crews, 261 N.C. 143, 147, 134 S.E.2d 199, 202.

Plaintiffs assign as error the failure of the court, when instructing the jury with reference to the contributory negligence issue, to review and stress their contentions equally with those of defendant.

Evidence pertinent to the contributory negligence issue includes the following:

T. S. Clark, the investigating State Highway Patrolman, testified that, in their first conversation, Godwin told him he was driving at approximately forth miles per hour when he came up behind the loaded coal truck; that he pulled out to pass it; and that he (Godwin) did not blow his horn. Clark testified that, in a later conversation, Godwin told him the coal truck was going at a slow speed, 'about ten or fifteen miles per hour,' when he came up behind it; that he (Godwin) told him he blew his horn, put on his (Godwin's) left turn signal to pass, and that as he (Godwin) 'got up by the side of Key's turck, it made a left turn into his vehicle'; and that, in response to his (Clark's) question as to whether 'he saw any signals or any lights on the back of the truck being operated by Mr. Key,' Godwin 'stated he did not see a signal.'

There was evidence that the speed limit for trucks on this section of No. 27 was forty-five miles per hour, and evidence, consisting of physical facts and oral testimony, from which the jury could find defendant's truck when approaching the scene of collision and at the moment of impact was being operated in excess of this legal limit. There was also evidence that the right front portion of defendant's truck struck the front portion of the left side of the coal truck at the door of the cab and that this impact occurred near the middle of the north traffic lane.

A witness, Clyde Fourchee, testified he was traveling west on No. 27 at a point one-third of a mile away; that he 'didn't see the vehicles come together' but 'only saw them in the process of colliding, coming together'; and that, when he saw them, 'they had already come together.' Fourchee testified: 'I did not see the coal truck give any signal. I didn't see any signal, I was too interested in looking at the wreck itself.'

The portion of the charge in which the court reviewed the contentions of the parties is quoted in full below:

'Now, the defendant contends that the plaintiffs' intestate was negligent in that he failed to exercise due care, as I have heretofore defined for you; that if he had looked, he could have seen the other truck; that he failed to keep a proper lookout, and that he failed to keep his truck under proper control, and, further, that he violated Section 20--154 of the General Statutes, which the attorneys have read to you, but I will restate it, which requires that 'The driver of any vehicle upon a highway before starting, stopping or turning from a direct line shall first see that such movement can be made in safety, and whenever the operation of any other vehicle may be affected by such movement, shall give a signal as required in this section, plainly visible to the driver of such other vehicle, of the intention to make such movement.'

'The defendant contends that the plaintiffs' intestate made the turn before he ascertained that the same could be made in safety and where other vehicles were involved on the highway; that he did not give a turn signal.

'(The defendant contends that from the testimony of Mr. Clark the defendant's driver said he did not see a turn signal, and from Mr. Fouchee, that he said he did not see a signal as he came across the hill, although the plaintiffs contend that Mr. Fourchee did not have the opportunity to see or did not see the turn signal for other reasons, that he was looking at something else, or looking at the collision, but the defendant contends that from the evidence of Mr....