Lewis v. Watson

• Decision Date: 28 April 1948
• Docket Number: No. 522.,522.
• Citation: 229 N.C. 20,47 S.E.2d 484
• Parties: LEWIS. v. WATSON et al.
• Court: North Carolina Supreme Court

47 S.E.2d 484

229 N.C. 20

LEWIS.

v.WATSON et al.

No. 522.

Supreme Court of North Carolina.

April 28, 1948.

Appeal from Superior Court, Mecklenburg County; George B. Patton, Special Judge.

Action by John P. Lewis, administrator of the estate of Henry Gordon Law, deceased, against Garriel Watson and another to recover for death of plaintiff's intestate when struck by defendants' truck-tractor. From a judgment for defendants, the plaintiff appeals.

New trial.

This is a civil action in which the plaintiff, John P. Lewis, administrator, seeks to recover damages of the defendants forthe death of his intestate, Henry Gordon Law, upon a complaint alleging that such death was proximately caused by the negligence of the defendant, Garriel Watson, while operating a" truck tractor on the business of his employer, the corporate defendant, Troy Whitehead Machinery Company. The ownership of the truck tractor by Troy Whitehead Machinery Company and the agency of Garriel Watson for it were conceded by the defendants. They denied, however, that the plaintiff's intestate had suffered death on account of negligence on the part of Garriel Watson, and pleaded contributory negligence on the part of the deceased as an affirmative defense.

There was substantial disagreement in the evidence of the parties relating to the merits of the action. A few facts, however, were not in dispute. United States Highway No. 29 runs westward from Charlotte to Gastonia. The plaintiff's intestate was walking westerly somewhere on his right hand half of this road about a mile west of the limits of Charlotte on the afternoon of November 25, 1946. Here he was overtaken and struck by the truck tractor owned by Troy Whitehead Machinery Company and driven by Garriel Watson. When the truck tractor came upon the decedent from the rear, it was proceeding west along its right side of the road. The highway was straight and practically level at this point, and was paved to a width of 36 feet. Before the collision in controversy, the State Highway and Public Works Commission had established four traffic lanes of equal widths upon this part of the highway by placing white lines on the pavement, and had assigned the two southern lanes to eastbound traffic and the two northern lanes to westbound traffic.

When viewed most strongly in his favor, the plaintiff's evidence tended to establish the matters set out in this paragraph. The deceased was walking westerly along the extreme northern margin of the highway, pushing a handcart ahead. The truck tractor came up from his rear at a speed of 55 or 60 miles an hour. It was daylight, and there wa6 nothing to prevent the driver of the truck tractor from seeing the intestate pushing his handcart in the same direction on the same side of the highway. Notwithstanding these facts, the driver of the truck tractor proceeded ahead without reducing his speed, or changing his course, or giving any warning of his approach, and ran down and killed the decedent.

The defendants introduced testimony, however, indicating that the truck tractor collided with the intestate under the conditions set forth in this paragraph. The accident happened about sunset when virtually a solid stream of motor vehicles was moving along each of the four traffic lanes on United States Highway No. 29. At that time the deceased was pushing his handcart westerly in the middle of the northern half of the highway between the two lines of motor vehicles proceeding westward along the two northern traffic lanes. The defendant, Garriel Watson, approached in the truck tractor, traveling west in the northernmost traffic lane at a speed not exceeding 25 miles an hour. He was following a passenger automobile. He had the truck tractor under control, and was keeping a diligent lookout ahead. But the plaintiff's intestate was hidden from his sight by intervening motor vehicles. When the truck tractor was a short distance away, the passenger car in its front unexpectedly swerved to the left and struck the deceased or his handcart, knocking the deceased into the path of the oncoming truck tractor and so close thereto that it was impossible for its driver to avoid hitting the deceased.

The court below submitted these three issues to the jury: (1) Was the plaintiff's intestate killed by the negligence of the defendants, as alleged in the complaint? (2) If so, did the plaintiff's intestate, by his own negligence, contribute to. his death, as alleged in the answer? (3) What amount, if any, is the plaintiff entitled to recover of the defendants?

The jury answered the first issue "No", and the court rendered judgment on this verdict exonerating the defendants from liability to the plaintiff. The plaintiff thereupon appealed.

Smathers, Smathers & Carpenter, of Charlotte, Landon H. Roberts and Smathers & Meekins, all of Asheville, for plaintiff-appellant.

Tillett & Campbell, and James B. Craig-hill, all of Charlotte, for defendants-appellees.

ERVIN, Justice.

G.S. § 1-180 provides that the trial judge shall "state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon." By exceptions duly reserved to the charge, the plaintiff asserts that the court below did not perform the function devolving upon it under this statute.

The chief purpose of a charge is to aid the jury clearly to comprehend the case, and to arrive at a correct verdict. For this reason, this Court has consistently ruled that this statute imposes upon the trial judge the positive duty of instructing the jury as to the law upon all of the substantial features of the case. Smith v. Kappas, 219 N.C. 850, 15 S.E.2d 375; Ryals v. Carolina Contracting Co., 219 N.C. 479, 14 S.E.2d 531; Williams v. Eastern Carolina Coach Co, 197 N.C. 12, 147 S.E. 435; Wilson v. Wilson, 190 N.C. 819, 130 S.E. 834. If the mandatory requirements of the statute are not observed, "there can be no assurance that the verdict represents a finding by the jury under the law and the evidence presented." Smith v. Kappas, supra, [219 N.C. 850, 15 S.E. 2d 378]. A litigant does not waive his statutory right to have the judge charge the jury as to the law upon all of the substantial features of the case by failing to present requests for special instructions. Smith v. Kappas, supra; Spencer v. Brown, 214 N.C. 114, 198 S.E. 630. Moreover, the mandate of the statute is not met by a "statement of the general principles of law, without an application to the specific facts involved in the issue." Ryals v. Carolina Contracting Co, supra [219 N.C. 479, 14 S.E.2d 533]; Mack v. Marshall Field & Co, 218 N.C. 697, 12 S.E.2d 235; Nichols v. Champion Fibre Co, 190 N.C. 1, 128 S.E. 471. The judge must declare and explain the law "as it relates to the various aspects of the testimony offered." Smith v. Kappas, supra. By this it is meant that the statute requires the judge "to explain the law of the case, to point out the essentials to b"e proved on the one side or the other, and to bring into view the relations of the particular evidence adduced to the particular issues involved." 53 Am.Jur, Trial, section 509.

When the instructions given to the jury in the court below are scrutinized in the light of these principles, it is indisputably clear that the trial judge failed to declare and explain the law arising upon the evidence given in this case, and that the exceptions of the plaintiff to the charge must be sustained. After stating to the jury with commendable accuracy the testimony offered by the parties and the contentions made by them thereon, the trial court defined actionable negligence and contributory negligence in most general terms, gave the rules as to the burden of proof on the several issues, instructed the jury as to the...