Templeton v. Kelley

• Citation: 5 S.E.2d 555,216 N.C. 487
• Decision Date: 22 November 1939
• Docket Number: 527.
• Parties: TEMPLETON v. KELLEY et al.
• Court: United States State Supreme Court of North Carolina

5 S.E.2d 555

216 N.C. 487

TEMPLETON v. KELLEY et al.

No. 527.

Supreme Court of North Carolina

November 22, 1939

Civil action to recover damages for personal injuries alleged to have been caused through the negligent operation of an automobile by the defendant Kelley, as agent and employee of the defendant Beaty Service Company.

The plaintiff was crossing West Trade Street in the City of Charlotte between two intersections, at which traffic lights were maintained. When he was at about the center of the street he was struck by a car being operated by the defendant Kelley. He contends that he stopped to permit two cars going in a westerly direction to pass; that the second car, being driven by Kelley, suddenly whipped around the front car at an excessive rate of speed and ran over and against him, causing the injuries. The defendants contend that Kelley was operating his car in a westerly direction at a moderate rate of speed and that the plaintiff, while crossing the street in an effort to dodge or get out of the way of another car suddenly ran in front of or into the car being operated by Kelley. The other facts are fully stated in the opinion of this Court on the former appeal in this case. Templeton v. Kelley, 215 N.C. 577, 2 S.E.2d 696.

The jury answered the issues submitted in favor of the plaintiff. From judgment thereon the defendants appealed.

H L. Taylor, of Charlotte, for defendants appellants.

Uhlman S. Alexander, of Charlotte, for plaintiff appellee.

BARNHILL Justice.

The exception of the defendants to the refusal of the Court to sustain the motion as of nonsuit cannot be sustained. On the former appeal this Court reversed the judgment of nonsuit holding that there is sufficient evidence to be submitted to the jury. Templeton v. Kelley, supra. That opinion constitutes the law of this case in that respect.

On the issue of negligence, in its charge, the court instructed the jury in part as follows: "If you find by the greater weight of this evidence, the burden being upon the plaintiff to so satisfy you, that the defendant was operating that car in a straight line, and the plaintiff was standing in the middle of the street in plain view where the driver of that car saw him or, by the exercise of reasonable care, could have seen him, and he violated this Section 116, (sec. 116 ch. 407, P.L. 1937) which I read to you a minute ago, by turning suddenly to the left without giving any warning by the sounding of a horn, and struck this plaintiff, that's negligence per se, and you will answer that issue yes." This charge is materially defective in that, for one reason, it entirely omits the element of proximate cause. Notwithstanding the fact the conduct of the defendant may have constituted negligence per se this, of itself, does not require an affirmative answer to the issue. Woods v. Freeman, 213 N.C. 314, 195 S.E. 812; Fleeman v. Coal Co., 214 N.C. 117, 198 S.E. 596; Morris v. Johnson, 214 N.C. 402, 199 S.E. 390; Marsh v. Byrd, 214 N.C. 669, 200 S.E. 389. Non constat the testimony of the plaintiff may establish conduct on the part of the defendant which constitutes negligence per se or prima facie evidence of negligence, the question of proximate cause still remains to be determined by the jury. Proof of negligence per se does not, as a matter of law, require an affirmative answer to an issue of negligence. In this case the defendants contend, and offer evidence tending to show, that the cause of the collision between the car and the plaintiff was proximately caused by the conduct of the plaintiff. The jury must determine upon all the evidence not only that the defendants were guilty of negligence per se but that such negligence was the cause without which the injuries would not have...