Rowe v. Fuquay

114 S.E.2d 631 (1960)

252 N.C. 769

Rulax ROWE v. Noel Betts FUQUAY.

No. 460.

Supreme Court of North Carolina.

June 10, 1960.

*632 Teague, Johnson & Patterson, Raleigh, for plaintiff appellee.

Smith, Leach, Anderson & Dorsett, Raleigh, for defendant appellant.

WINBORNE, Chief Justice.

I. The evidence considered in the light most favorable to plaintiff was sufficient to go to the jury and defendant's motion for judgment of nonsuit was properly overruled. See Williams v. Henderson, 230 N.C. 707, 55 S.E.2d 462, and Hatcher v. Clayton, 242 N.C. 450, 88 S.E.2d 104.

II. There are several assignments of error based on exceptions duly taken by defendant to the court's charge on the second issue. Among these No. 24 based on exception number 24, is that the court erred in that it "failed to instruct the jury what facts it was necessary for them to find to constitute negligence on the part of the plaintiff or as to the circumstances under which the second issue should be answered in the affirmative, and under what circumstances it should be answered in the negative, but left the jury unaided to determine what facts constituted negligence on the part of the plaintiff, and thereby failed to declare, explain, and apply the law to the facts arising upon the evidence given in this case as required by G.S. § 1-180." The exception is well taken.

Parker, J., speaking for the Court in Glenn v. City of Raleigh, 246 N.C. 469, 98 S.E.2d 913, 919, 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 evidence as to all the substantial features of the case. A mere declaration of the law in general terms and a statement of the contentions of the parties, as here, is not sufficient to meet the statutory requirement. Hawkins v. Simpson, 237 N.C. 155, 74 S.E.2d 331, where 14 of our cases are cited." In the case in hand the court defined contributory negligence in general terms and stated the allegations and contentions of the defendant relating thereto. However, nowhere in *633 the charge did the trial judge instruct the jury as to the facts necessary to be found by them to constitute negligence on the part of the plaintiff. Nor did he in the charge instruct them as to the circumstances under which the second issue should be answered in the affirmative, and under what circumstances it should be answered in the negative. Glenn v. City of Raleigh, supra. Indeed there is failure to explain the law of contributory negligence applicable to the evidence upon which the defendant's contentions were based, should the jury find the facts from the evidence to be as contended for by him. Brooks v. Honeycutt, 250 N.C. 179, 108 S.E.2d 457.

Other assignments of error are not expressly considered. They may not recur upon another trial.

For the error pointed out, the defendant is entitled to a

New trial.