Dunlap v. Lee

126 S.E.2d 62 (1962)

257 N.C. 447

Betty B. DUNLAP v. William Edward LEE.

No. 669.

Supreme Court of North Carolina.

June 15, 1962.

*64 John F. Ray, Robert F. Rush and Charles T. Myers, Charlotte, for plaintiff.

Jordan, Wright, Henson & Nichols, Greensboro, for defendant.

MOORE, Justice.

Defendant makes five assignments of error based on fifteen exceptions. All, except formal exceptions, are to the charge.

Defendant contends that the court erred in charging that reckless driving was an element of negligence to be considered by the jury in this case. We agree.

Plaintiff alleged that defendant's conduct violated both subsections of the reckless driving statute, G.S. § 20-140. The court charged only as to subsection (b), read the subsection to the jury, and stated: "* * * (T)he plaintiff insists and contends * * * that he (defendant) violated one section of the reckless driving statute which the court has read to you; and that you should find that the evidence of herself and defendant's own evidence in his Adverse Examination and all the evidence in the case that he did not drive his car at such a speed and in such a manner that he did not endanger or was not likely to endanger the plaintiff in the way and manner in which he drove his car, in that he was looking some other way than straight ahead * * *."

A person may violate the reckless driving statute by either one of the two courses of conduct defined in subsections (a) and (b), or in both respects. State v. Folger, 211 N.C. 695, 191 S.E. 747. *65 The language of each subsection constitutes culpable negligence. State v. Roberson, 240 N.C. 745, 83 S.E.2d 798. "Culpable negligence is such recklessness or carelessness, proximately resulting in injury or death, as imports a thoughtless disregard of consequences or heedless indifference to the safety and rights of others." State v. Cope, 204 N.C. 28, 30, 167 S.E. 456. A violation of G.S. § 20-140 is negligence per se. Stegall v. Sledge, 247 N. C. 718, 102 S.E.2d 115. It gives rise to both criminal and civil liability. State v. McLean, 234 N.C. 283, 67 S.E.2d 75. A person who drives a vehicle upon a highway without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property is guilty of reckless driving. G.S. § 20-140(b). Mere failure to keep a reasonable lookout does not constitute reckless driving. To this must be added dangerous speed or perilous operation.

There was testimony from only two eyewitnesses to the accident, plaintiff and defendant. Plaintiff was unaware that defendant was following, and did not see him or his vehicle until after the collision. The impact was relatively slight. "Ordinarily the mere fact of a collision with a vehicle ahead furnishes some evidence that the following motorist was negligent as to speed, was following too closely, or failed to keep a proper lookout." Clark v. Scheld, 253 N.C. 732, 737, 117 S.E.2d 838; Clontz v. Krimminger, 253 N.C. 252, 116 S.E.2d 804; Smith v. Rawlins, 253 N.C. 67, 116 S.E.2d 184. But the nature of the negligence, if any, depends upon the circumstances in each particular case. Beaman v. Duncan, 228 N.C. 600, 46 S.E.2d 707. Defendant's testimony permits the inference that he was not keeping a reasonable lookout. There is no direct evidence in the record of excessive speed or that defendant was following too closely; the direct evidence is to the contrary. The evidence does not support the allegation of reckless driving. Clark v. Scheld, supra; Andrews v. Sprott, 249 N.C. 729, 107 S.E.2d 560.

Furthermore, when the complaint is stripped of the allegations of law and the conclusions of the pleader, reckless driving is not alleged. Plaintiff merely alleges that defendant violated G.S. § 20-140(b) "in that he failed to use due caution and circumspection and failed to keep his speed within proper driving range."

One of the most important purposes of the charge is "the elimination of irrelevant matters and causes of action or allegations as to which no evidence has been offered, and (to) thereby let the jury understand and appreciate the precise facts that are material and determinative." Irvin v. Southern R. R., 164 N.C. 5, 18, 80 S.E. 78; Stern Fish Co. v. Snowden, 233 N.C. 269, 63 S.E.2d 557; Lewis v. Watson, 229 N.C. 20, 47 S.E.2d 484; State v. Jackson, 228 N.C. 656, 46 S.E.2d 858. An instruction about a material matter not based on sufficient evidence is erroneous. In other words, it is error to charge on an abstract principle of law not raised by proper pleading and not supported by any view of the evidence. McGinnis v. Robinson, 252 N.C. 574, 114 S.E.2d 365; Andrews v. Sprott, supra. There was sufficient allegation and proof of negligence, other than reckless driving, to justify the jury's verdict on the negligence issue, but we cannot say that the verdict was not influenced by the court's view that recklessness was involved.

The court, after explaining to the jury the proper rule for measuring and assessing damages, further instructed them as follows: "* * * (S)he (plaintiff) insists and contends * * * that pain and suffering is very difficult to evaluate in dollars and cents, but that the only way that you can do it is to use your good, common sense and put yourself in her place and say how much it would be worth to you to suffer approximately two years up until now, and then how much it would be *66 worth to you to suffer especially in bad weather from six to twelve more months in the future, and put that down in round dollars and cents * * *." Such expressions as that in italics have been universally held erroneous, and in some cases sufficiently prejudicial to warrant a new trial.

"* * * (T)he court * * * should not draw their (the jury's) attention to the price for which they would be willing to suffer the injury for which they are to assess damages." 15 Am.Jur., Damages, s. 370, p. 809.

In Paschall v. Williams, 11 N.C. 292, plaintiff sued for damages suffered by reason of an assault and battery upon his person. The judge told the jury "to imagine themselves placed in a similar situation with the Plaintiff, what sum would they think sufficient to compensate them for such an injury; that in viewing the subject in this light, by giving to the Plaintiff what they would be willing to take, the justice of the case might be reached." While the court did not approve the instruction when taken literally, and deemed it impracticable as a rule for measuring damage, it thought that the jury might have considered it a direction "to estimate the damages from the view of all the circumstances," and declined to disturb the verdict.

In other jurisdictions the following instructions in personal injury suits were condemned, with the result and in the cases indicated: "You would not be willing to lose your arm for the world, or for the wealth of a Vanderbilt." Undesirable form, new trial on other grounds. Kehler v. Schwenk, 144 Pa. 348, 22 A. 910, 13 L. R.A. 374 (1891). "A good many jurors do put themselves right in his place and say: `What under the circumstances would I want for injuries and suffering of that kind.'" Further: "Not what they would take, but what they would want." Prejudicial error. Greer v. Union Ry. Co., 53 Misc. 639, 103 N.Y.S. 88 (1907). "`You may' put yourself in her place and consider what you would be willing to take under the circumstances." New trial. Rhodes v. Union Ry. Co., 52 Misc. 511, 102 N.Y.S. 510 (1907). "You know that the child will undergo much humiliation by reason of this disfiguring accident. You can appraise that by thinking of what would be your own humiliation and sense of mental suffering if you had to go through life with an arm off above the elbow and the other arm off below the elbow." Instruction not approved. Virginian Ry. Co. v. Armentrout, 166 F.2d 400 (CC4C 1948). "* * * as you yourself would want to be awarded if you were the plaintiff and were entitled to have damages awarded." Erroneous, new trial on other grounds. McNamara v. Dionne, 298 F.2d 352 (CC2C 1961).

Such instructions in personal injury suits are considered erroneous for several reasons. They encourage verdicts based on sympathy in areas of the law in which jurors are already prone to sympathize. They tend to vary and supersede the established legal rule for the admeasurement of damages. If literally applied as a rule for assessing damages, such would be impracticable. "Collectively, the jury could not place themselves in the plaintiff's situation, unless their temper, fortune, feelings, and standing in society, resemble his; and the attempt to do it, individually, would be an insuperable bar to an unanimous verdict." Paschall v. Williams, supra.

Damages for pain and suffering should be objectively arrived at. "The question in any given case is not what sum of money would be sufficient to induce a person to undergo voluntarily the pain and suffering for which recovery is sought or what it would cost to hire someone to undergo such suffering, but what, under all the circumstances, should be allowed the plaintiff in addition to the other items of damage to which he is entitled, in reasonable consideration of the suffering necessarily endured. The amount allowed must be fair and reasonable, free from sentimental or fanciful *67 standards, and based upon the facts disclosed. In making the estimate the jury may consider the nature and extent of the injuries and the suffering occasioned by them and the duration thereof. They may also consider the age, health, habits, and pursuit of the injured party and his health and condition before the injury as compared with his condition in consequence thereof." 15 Am.Jur., Damages, s. 72, pp. 482, 483.

New trial.