Parlier v. Barnes, 314

• Decision Date: 16 October 1963
• Docket Number: No. 314,314
• Citation: Parlier v. Barnes, 132 S.E.2d 684, 260 N.C. 341 (N.C. 1963)
• Parties: James Ray PARLIER v. Tommy BARNES and Jud Barnes and Jud Barnes, guardian ad litem of Tommy Barnes.
• Court: North Carolina Supreme Court

Page 684

132 S.E.2d 684

260 N.C. 341

James Ray PARLIER v. Tommy BARNES and Jud Barnes and Jud Barnes, guardian ad litem of Tommy Barnes.

No. 314

Supreme Court of North Carolina.

Oct. 16, 1963

Holshouser & Holshouser, Boone, for defendant appellants.

McElwee & Hall, by Richard A. Vestal, North Wilkesboro, for plaintiff appellee.

PER CURIAM.

Plaintiff's evidence tends to show: About 5:30 p. m. on 10 May 1962 he was driving his automobile west on King Street in the town of Boone. He stopped behind a truck preparing to make a left turn, and had his left arm extended 'with a slow or stop sign.' After he had been stopped there for approximately three or four minutes, Tommy Barnes driving his father's automobile ran into the rear of his automobile. He was thrown forward, then jerked back over the seat, and then thrown forward again. He sustained serious injuries as a result of the collision.

The joint answer admits that Jud Barnes was the owner of the automobile his son Tommy Barnes was driving at the time of the collision, and that it was registered in the name of Jud Barnes as owner.

Defendant Tommy Barnes testified on cross-examination: 'I was going 35 miles an hour. * * * I remember talking to the Chief of Police up there. * * * I guess I said that I told Mr. Thomas that I ran into the back of this car because I just didn't see it. I told him the car stopped suddenly in front of me and I hit him. I told Mr. Thomas that.' The Mr. Thomas referred to was Hubert Thomas, Chief of Police of the town of Boone, and a witness for plaintiff.

The complaint alleges, inter alia, Tommy Barnes was negligent in operating the automobile without keeping a proper lookout.

Considering plaintiff's evidence in the light most favorable to him, and the evidence of defendants favorable to him, it was sufficient to carry the case to the jury, and defendants' assignment of error that the court erred in denying their motion for compulsory non-suit made at the close of all the evidence is overruled. Smith v. Rawlins, 253 N.C. 67, 116 S.E.2d 184, 85 A.L.R.2d 609; Dunlap v. Lee, 257 N.C. 447, 126 S.E.2d 62; G.S. § 20-71.1.

Defendants assign as error the failure of the court in its charge to apply the law to the evidence on the substantial features of the case, in that the court failed to charge and apply the applicable statutory law as to speed of automobiles, and failed to charge and apply the law as it relates to the variant factual situations arising on the evidence given in the case.

A study of the charge shows that the court gave the contentions of the parties and instructed the jury with respect to negligence and proximate cause according to the rule of the reasonably prudent man, with respect to the maximum speed in a 'business district,' and with respect to giving a signal when preparing to stop. But nowhere in the charge did the court instruct the jury what facts it was necessary for them to find to constitute negligence on the part of Tommy Barnes, and contributory negligence on the part of plaintiff. Nowhere in the charge did the court instruct the jury as to the circumstances under which the first issue, as to whether plaintiff was injured by defendants' negligence, should be answered in the affirmative, and under what circumstances it should be answered in the negative.

In Glenn v. Raleigh, 246 N.C. 469, 98 S.E.2d 913, it is said:

'The chief purpose of a charge is to aid the jury to understand clearly the case, and to arrive at a correct verdict. For this reason, this Court has consistently ruled that G.S. § 1-180 imposes upon the Trial Judge the positive duty of declaring and explaining the law arising on the...