Kolman v. Silbert

• Decision Date: 31 January 1941
• Docket Number: 756.
• Citation: 12 S.E.2d 915,219 N.C. 134
• Parties: KOLMAN v. SILBERT el al.
• Court: North Carolina Supreme Court

12 S.E.2d 915

219 N.C. 134

KOLMAN v. SILBERT el al.

No. 756.

Supreme Court of North Carolina

January 31, 1941

The defendant, H. Silbert, owns and maintains an automobile for family use. On 23 May, 1938, his wife and his daughter, the defendant Mrs. Hannah Silbert Siff, used this automobile on a trip to attend a convention in Durham. The plaintiff became a guest passenger on the return trip to Winston-Salem. Mrs Siff was driving and it was raining. The automobile suddenly began to skid, ran down an embankment and turned over. As a result plaintiff sustained certain personal injuries.

Thereafter plaintiff instituted this action to recover compensation for the personal injuries received, alleging that the driver was operating the motor vehicle at the time "in a careless and reckless manner, without due caution and circumspection and at a speed and in a manner so as to endanger the life and limb of the plaintiff; in that she was driving the said automobile at a high and unlawful rate of speed upon a wet and slippery highway, to-wit, from 45 to 50 miles per hour in that she was driving the said automobile without having the same under proper control, without keeping a proper lookout and without having her mind and attention properly upon the driving of the said automobile under the circumstances; in that she was attempting to raise or lower the side window in the said car without slowing down the said car and without keeping her eyes upon the highway and in so doing caused the said automobile to swerve in a careless and negligent manner, whereupon it began to slip and slide *** in that she was driving an automobile with the tires worn and slick".

Appropriate issues were submitted to the jury and it answered the issue of negligence in the negative. From judgment entered thereon plaintiff appealed.

Fred S. Hutchins and H. Bryce Parker, both of Winston-Salem, for appellant.

Ratcliff, Hudson & Ferrell, of Winston-Salem, for appellees.

BARNHILL Justice.

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. Bowen v. Schnibben, 184 N.C. 248, 114 S.E. 170; Williams v. Coach Co., 197 N.C. 12, 147 S.E. 435; Spencer v. Brown, 214 N.C. 114, 198 S.E. 630.

"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." Bowen v. Schnibben, supra [184 N.C. 248, 114 S.E. 171]; Orvis Bros. & Co. v. Holt-Morgan Mills Co., 173 N.C. 231, 91 S.E. 948; Matthews v. Myatt, 172 N.C. 230, 90 S.E. 150; Nichols v. Fibre Co., 190 N.C. 1, 128 S.E. 471; Williams v. Coach Co., supra; Commissioner of Banks v. Florence Mills, Inc., 202 N.C. 509, 163 S.E. 598; Spencer v. Brown, supra; and the violation of the provisions of the statute regulating speed constitutes prima facie evidence of negligence and the violation of the other provisions thereof constitutes negligence per se.

The courts have been rather meticulous --and properly so--especially in the matter of negligence--in requiring that the law be explained in its connection with the facts in evidence. Smith v. Bus Co., 216 N.C. 22, 3 S.E.2d 362.

In undertaking to comply with this requirement the court below charged the jury: (1) "Now, gentlemen, the speed law with reference to a place out on the highway at that time and place reads as follows: 'Provided, that if any person should operate a motor vehicle upon the highway at a speed in excess of 45 miles per hour that that speed is prima facie evidence that the speed was not justified and was a violation of the speed limits."; and (2) "If the plaintiff shall have satisfied you by the greater weight of the evidence that the defendant, Mrs. Siff, was operating the car in such a manner as to be in...