Widenhouse v. Yow, 532

• Decision Date: 01 February 1963
• Docket Number: No. 532,532
• Citation: Widenhouse v. Yow, 129 S.E.2d 306, 258 N.C. 599 (N.C. 1963)
• Court: North Carolina Supreme Court
• Parties: A. W. WIDENHOUSE, Jr. v. W. C. YOW, Jr., and Howard Dean Helms. A. W. WIDENHOUSE, Sr., trading as Widenhouse Motors v. W. C. YOW, Jr., and Howard Dean Helms.

Page 306

129 S.E.2d 306

258 N.C. 599

A. W. WIDENHOUSE, Jr. v.W. C. YOW, Jr., and Howard Dean Helms.

A. W. WIDENHOUSE, Sr., trading as Widenhouse Motors v.W. C. YOW, Jr., and Howard Dean Helms.

No. 532

Supreme Court of North Carolina.

Feb. 1, 1963

Smith & Griffin, Monroe, for defendantappellant Helms.

Hartsell, Hartsell & Mills and E. T. Bost, Jr., Concord, for plaintiffappellees.

BOBBITT, Justice.

Each defendant assigns as error the denial of his motions for judgment of nonsuit.

There was ample evidence to support a finding that, as alleged by plaintiffs, (1) the negligent operation of the Ford by Helms proximately caused the collision and (2)defendant Yow as owneroccupant of the Ford was liable for damages caused by the actionable negligence of Helms.Helms contends the evidence offered by plaintiffs and admitted over his objections tending to show Helms was the operator of the Ford was incompetent and should have been excluded.However, admitted evidence, whether competent or incompetent, must be considered on a defendant's motion for judgment of nonsuit.Kientz v. Carlton, 245 N.C. 236, 246, 96 S.E.2d 14, and cases cited;Frazier v. Suburban Rulane Gas Co., 248 N.C. 559, 103 S.E.2d 721.Be that as it may, the competent and positive testimony of defendant Yow and his brother, Dock Robert Yow, identified Helms as the operator of the Ford.When a defendant offers evidence, the only motion for judgment of nonsuit to be considered is that made at the close of all the evidence.G.S. § 1-183;Murray v. Wyatt, 245 N.C. 123, 128, 95 S.E.2d 541.

With reference to the contention of each defendant that plaintiffs were contributorily negligent as a matter of law, it is our opinion, and we so hold, that the evidence, when taken in the light most favorable to plaintiffs, does not establish plaintiffs' contributory negligence so clearly that no other reasonable inference or conclusion may be drawn therefrom.Dennis v. Albemarle, 243 N.C. 221, 223, 90 S.E.2d 532.

Defendants' motions for judgment of nonsuit were properly overruled.Since a new trial is awarded, we refrain from discussing the evidence presently before us except to the extent necessary to show the reasons for the conclusions reached.Mason v. Gillikin, 256 N.C. 527, 530, 124 S.E.2d 537, and cases cited.

In the interpretation of the verdict, these legal principles must be kept in mind.It is well settled that a verdict must be interpreted with reference to the pleadings, the evidence and the judge's charge.Guy v. Gould, 202 N.C. 727, 164 S.E. 120;Jernigan v. Jernigan, 226 N.C. 204, 37 S.E.2d 493;Reid v. Holden, 242 N.C. 408, 413, 88 S.E.2d 125;Litaker v. Bost, 247 N.C. 298, 306, 101 S.E.2d 31;Gunter v. Winders, 253 N.C. 782, 785, 117 S.E.2d 787.

With reference to the first issue, the court instructed the jury the burden of proof was on plaintiffs to establish by the greater weight of the evidence that the negligent operation of the Ford by Helms proximately caused the collision and plaintiffs' damages; and if they found from the evidence and by its greater weight that the negligent operation of the Ford proximately caused the collision but failed to find from the evidence and by its greater weight that Helms was the operator thereof, the jury should answer the first issue 'No.'

The court instructed the jury they would consider the second issue only if they answered the first issue 'No.'If they answered the first issue 'No,' the judge instructed the jury they should answer the second issue 'Yes' if the plaintiffs had satisfied them from the evidence and by its greater weight that the negligent operation of the Ford by the driver thereof (without identifying any particular person as the driver) proximately caused the collision and plaintiffs' damages.

When the jury, by answering the second issue 'Yes,' found that the negligent operation of the Ford by the driver thereof proximately caused the collision and plaintiffs' damages, it seems clear the jury answered the first issue 'No' solely because it failed to find that Helms was the operator of the Ford.

The court submitted the case to the jury as if the complaints had been amended prior to or during trial to set forth the allegations of the (subsequently filed) amended complaints.When defendant Yow was advised the case would be so submitted does not appear.Certainly he had notice thereof from the time the court settled the issues.There is no merit in the contention of defendant Yow that he was entitled to judgment that plaintiffs recover nothing from him on account of plaintiffs' failure to establish that Helms (rather than defendant Yow) was the operator of the Ford.

Defendant Yow assigns as error the orders permitting plaintiffs to file said amended complaints after verdict and before judgment.He contends that, unlike the factual situation considered in Litaker v. Bost, supra, the amendments changed the theory of plaintiffs' actions.Originally, he contends, plaintiffs alleged Helms was the operator of the Ford and he, defendant Yow, was liable as owner-occupant for Helms' negligence; but under the after-verdict amendmentsplaintiffs' actions are to recover on the ground he, defendant Yow, was the actual operator of the Ford.It is noted: Whether defendant Yow or defendant Helms was operating the Ford is a matter of importance (1) in respect of their rights and liabilities interse and (2) in respect of what counterclaim(s), if any, are barred by the negligence (contributory negligence), if any, of the driver of the Ford.However, for reasons noted below, we need not determine whether the afterverdict amendments substantially changed the claims of plaintiffs within the meaning of G.S. § 1-163 or whether defendant Yow was otherwise prejudiced in respect of the after-verdict amendments.

Defendant Helms excepted to and assigned as error the following portion of the court's charge:

'Now, the Court charges you as a matter of law, if you come to this sixth issue, if you are satisfied from the evidence and by its greater weight that the plaintiff Widenhouse, Jr. was operating his automobile at more than 60 miles an hour on this highway, that he did not keep a proper lookout, that the Ford automobile was out on the highway, not just approaching him but out in the highway before he ever saw it, or if he did see it, before he ever attempted to slow down or pass, that the whole left side of the highway was there open for him to pass on, and that he was negligent and that such negligence was a proximate cause of injury to the defendant Helms, it would be your duty to answer the sixth issue YES; if you are not so satisfied, you would answer it NO.'

The quoted instruction was erroneous and prejudicial to defendant Helms in that its effect was to require the jury to find plaintiffs guilty of all the acts of negligence detailed by the court in order to answer the sixth issue in favor of defendant Helms.Andrews v. Sprott, 249 N.C. 729, 107...