Barnes v. Caulbourne

Bobbitt, J. It is noteworthy that the evidence upon which plaintiff relied tends to show a factual account of the tragic accident materially at variance with the allegations of the complaint; but, on plaintiff’s appeal from an adverse jury verdict, we need not consider whether judgment as of nonsuit should have been entered on the ground of variance between allegation and proof. A plaintiff must make out his case secundum allegata. Whichard v. Lipe, 221 N.C. 53, 19 S.E. 2d 14, 139 A.L.R. 1147; Suggs v. Braxton, 227 N.C. 50, 40 S.E. 2d 470. Plaintiff’s assignments of error (1-5) challenge excerpts from the charge, not on the ground that they are incorrect as general statements of law, but on the ground that the court failed to “declare and explain the law arising on the evidence given in the case” as required by G.S. 1-180. Bank v. Phillips, 236 N.C. 470, 73 S.E. 2d 323, and cases cited. This failure, plaintiff contends, relates to instructions bearing upon (1) the legal duty of defendant to plaintiff’s intestate, a seven-year-old child, and (2) the applicability of the doctrine of sudden emergency to the facts disclosed by the evidence in this case. It is noted that plaintiff tendered no requests for special instructions. Even so, a failure to charge the law on the substantive features of the case arising on the evidence is prejudicial error. Howard v. Carman, 235 N.C. 289, 69 S.E. 2d 522, and cases cited. On the other hand, when the charge is in substantial compliance with the requirements of G.S. 1-180, if a party desires further elaboration or explanation, he must tender specific prayers for instructions. S. v. Gordon, 224 N.C. 304, 30 S.E. 2d 43, and cases cited. Strictly speaking, two elements compose the concept of negligence: first, legal duty, and second, a failure to exercise due care in the performance thereof. Due care always means the care an ordinarily prudent person would exercise under the same or similar circumstances and when charged with like duty. Legal duty, however, varies according to subject matter and relationships. Thus, when a motorist observes, or should observe, children on, near or approaching a highway, he is under the duty of exercising greater vigilance and caution because of their immaturity and impulsive nature, that is, care commensurate with the dangers inherent in the circumstances then existing, and an ordinarily prudent *726 person will use due care in relation to such duty. Rea v. Simowitz, 225 N.C. 575, 35 S.E. 2d 871. The court’s instructions bearing upon defendant’s legal duty to plaintiff’s intestate, a seven-year-old boy, are substantially in accord with the applicable rule as stated by this Court. Greene v. Board of Education, 237 N.C. 336, 75 S.E. 2d 129; Hawkins v. Simpson, 237 N.C. 155, 74 S.E. 2d 331; Hughes v. Thayer, 229 N.C. 773, 51 S.E. 2d 488; Sparks v. Willis, 228 N.C. 25, 44 S.E. 2d 343; Rea v. Simowitz, supra; Yokeley v. Kearns, 223 N.C. 196, 25 S.E. 2d 602. Bearing upon the applicability of the doctrine of sudden emergency, suffice it to say that there was ample basis in the evidence for a finding that the defendant was confronted suddenly by an emergency situation, not caused in whole or in part by his own negligence. Hence, the instructions were instructions of law arising on the evidence and in accordance with the applicable rule. Henderson v. Henderson, 239 N.C. 487, 80 S.E. 2d 383; Goode v. Barton, 238 N.C. 492, 78 S.E. 2d 398; Morgan v. Saunders, 236 N.C. 162, 72 S.E. 2d 411; Sparks v. Willis, supra; Hoke v. Greyhound Corp., 227 N.C. 412, 42 S.E. 2d 593, and cases cited. There was no allegation or issue relating to contributory negligence on the part of plaintiff’s intestate. The trial judge was careful to explain to the jury that the sole issue was whether they were satisfied from the evidence and by its greater weight that negligence on the part of the defendant was a proximate cause of the death of plaintiff’s intestate. If so, his instruction was that the jury shorild answer the issue, “Yes,” “even though you also find that the acts of the plaintiff’s intestate, the little child, constituted also one of the proximate causes of his injury and death.” As stated by Barnhill, J. (now C. J.), in Vincent v. Woody, 238 N.C. 118, 76 S.E. 2d 356: “The charge is sufficient if, when read contextually, it clearly appears that the law of the ease was presented to the jury in such manner as to leave no reasonable cause to believe that it was misled or misinformed in respect thereto.” Such is the case here. There can be no doubt but that the jury understood the crucial issue to be decided. The jury was not satisfied from the evidence and by its greater weight that the tragic accident was caused in whole or in part by “a wrongful act, neglect or default” of defendant. G.S. 28-173. The record shows that, after verdict, one of plaintiff’s attorneys entered into a discussion with one of the jurors. Plaintiff undertook to offer the testimony of such juror that he had seen a trailer on the street during the progress of the trial with wheels wholly under the body thereof, upon which the trailer rested when the truck was detached, perhaps similar to wheels under defendant’s trailer according to defendant’s description of his equipment, and formed the impression that such wheels could not have *727 struck plaintiff’s intestate. Tbe trial judge declined to consider such evidence but permitted it for inclusion in tbe record as a basis for plaintiff’s exception. Passing tbe question as to whether such testimony was competent to impeach tbe verdict, tbe incident is irrelevant. All tbe evidence tends to show plaintiff’s intestate was struck by tbe front of tbe truck-trailer. Wheels under tbe trailer were not alleged or shown to have any causal relation to tbe collision. Tbe case was tried fairly; tbe jury has rendered its verdict; and we find no prejudicial error. No error. Paekee, J., concurs in result.