Godwin v. Johnson Cotton Co.

78 S.E.2d 772 (1953) 238 N.C. 627 GODWIN v. JOHNSON COTTON CO. No. 243. Supreme Court of North Carolina. November 25, 1953. *773 Salmon & Hooper, Lillington, I. R. Williams, Dunn, for appellant. J. R. Barefoot, Benson, Doffermyre & Stewart, for appellee. DENNY, Justice. The defendant assigns as error the refusal of the court below to sustain its motion for judgment of nonsuit. The plaintiff, as in all cases where a motion for judgment of nonsuit is interposed, is entitled to have her evidence considered in the light most favorable to her and to the benefit of every reasonable inference to be drawn therefrom. Edwards v. Vaughn, 238 N.C. 89, 76 S.E.2d 359; Morrisette v. A. G. Boone Co., 235 N.C. 162, 69 S.E.2d 239; Chambers v. Allen, 233 N.C. 195, 63 S.E.2d 212; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307. Moreover, on such a motion, evidence offered by the defendant which is favorable to the plaintiff, or which may be used to clarify or explain the plaintiff's evidence, will be considered. Ervin v. Cannon Mills Co., 233 N.C. 415, 64 S.E.2d 431; Gregory v. Travelers Insurance Co., 223 N.C. 124, 25 S.E.2d 398, 147 A.L.R. 283; Harrison v. North Carolina R. Co., 194 N.C. 656, 140 S.E. 598. *774 A careful consideration of the evidence presented in the trial below, when considered in the light most favorable to the plaintiff, leads to the conclusion that it was sufficient to warrant its submission to the jury. Consequently, the motion for judgment of nonsuit was properly denied. The defendant's exception No. 7 is to the following portion of the charge to the jury: "Contributory negligence is such act or omission on the part of the plaintiff amounting to a want of ordinary care, concurring and cooperating with some act or omission on the part of the defendant as makes the act or omission of the plaintiff the proximate cause or occasion of the injury complained of. Proximate cause means the direct cause that produces the result without any cause supervening to bring about the injury. Negligence of the plaintiff and its proximate cause must concur and be proven by the defendant, by the greater weight of the evidence." Prior to giving the above instruction to which the defendant excepts, the court gave a correct charge on contributory negligence. Later, however, it instructed the jury on the issue of contributory negligence as follows: "* * * if you find the truck driver was negligent, and that his negligence was the proximate cause of the injuries to Mrs. Godwin, and then you further find that she was negligent, and that her negligence combined and concurred with his negligence, and was the proximate cause of her injury, then you would answer the second issue yes." It is clear that if the negligence of the defendant was the proximate cause of the plaintiff's injuries, and not merely a proximate cause or one of the proximate causes thereof, then the negligence of the plaintiff, if any, would not constitute contributory negligence. West Construction Co. v. Atlantic Coast Line R. Co., 184 N.C. 179, 113 S.E. 672. On the other hand, if the negligence of the plaintiff was the proximate cause of her injuries, the idea of negligence on the part of the defendant would be excluded. Godwin v. Atlantic Coast Line R. Co., 220 N.C. 281, 17 S.E.2d 137; Absher v. City of Raleigh, 211 N.C. 567, 190 S.E. 897; Wright v. D. Pender Grocery Co., 210 N.C. 462, 187 S.E. 564; Newman v. Queen City Coach Co., 205 N.C. 26, 169 S.E. 808; Lunsford v. Asheville Manufacturing Co., 196 N.C. 510, 146 S.E. 129. In the case of Carolina Scenic Stages v. Lowther, 233 N.C. 555, 64 S.E.2d 846, 847, Stacy, C. J., said: "We have consistently held that in actions like the present the plaintiff's contributory negligence, in order to bar recovery, need not be the sole proximate cause of the injury as this would exclude any idea of negligence on the part of the defendant. * * * It is enough if it contribute to the injury as a proximate cause, or one of them. * * * The very term `contributory negligence' ex vi termini implies or presupposes negligence on the part of the defendant. * * * The plaintiff is barred from recovery, in an action like the present, when his negligence concurs and cooperates with the negligence of the defendant in proximately producing the injury. Gordon v. Sprott, 231 N.C. 472, 57 S.E.2d 785; Moore v. Boone, 231 N.C. 494, 57 S.E.2d 783." In Wright v. D. Pender Grocery Co., supra, Devin, J. (now Chief Justice), said: "The plaintiff's negligence need not have been the sole proximate cause of the injury. If his negligence was one of the proximate causes, the plaintiff would not be entitled to recover. To charge the jury that the burden was on the defendant to show that the plaintiff's negligence was the proximate cause of the injury would exclude the idea of the concurring negligence of both plaintiff and defendant proximately contributing to the injury." The instruction complained of would seem to be susceptible to only one interpretation—that is, that before the jury could find the plaintiff guilty of contributory negligence, it would be necessary for it to find that the plaintiff's negligence was the proximate cause of her injury. Naturally, if the jury in arriving at its answer to the second issue considered this instruction, rather than that previously given *775 thereon, it may have been influenced in arriving at such answer to the prejudice of the defendant. Moreover, an erroneous instruction upon a material aspect of the case is not cured by the fact that in other portions of the charge the law is correctly stated. State v. Ellerbe, 223 N.C. 770, 28 S.E.2d 519; State v. Isley, 221 N.C. 213, 19 S.E.2d 875; State v. Floyd, 220 N.C. 530, 17 S.E.2d 658; State v. Starnes, 220 N.C. 384, 17 S.E.2d 346. In State v. Floyd, supra [220 N.C. 530, 17 S.E.2d 659], in passing upon a question similar to that now under consideration, Winborne, J., said: "We must assume in such case, in passing upon appropriate exception, that the jury, in coming to a verdict, was influenced by that portion of the charge which is incorrect." Therefore, the defendant is entitled to a new trial, and it is so ordered. New trial. JOHNSON, Justice (dissenting). It may be conceded that there is technical inexactness in Judge Burgwyn's instruction that "contributory negligence is such act or omission on the part of the plaintiff amounting to a want of ordinary care, concurring and cooperating with some act or omission on the part of the defendant as makes the act or omission of the plaintiff the proximate cause * * * of the injury * * *" (Italics added). The approved formula is: "a proximate cause" or "one of the proximate causes," rather than "the proximate cause." However, it is not believed that this could have misled the jury or prejudiced the defendant in view of Judge Burgwyn's clear explanation of concurrent negligence as an essential element of contributory negligence, repeatedly emphasized throughout the charge. This was a factually simple case, fully developed by the parties and clearly presented to the jury by Judge Burgwyn in all substantive phases. An examination of the charge as a whole leaves the impression that the jury understood fully the controlling principles of law and were not misled by the inexact expression relied on by the defendant. In order to be entitled to a new trial, the defendant has the burden of establishing not only that error was committed, but that such error was material and prejudicial, since verdicts and judgments are not to be set aside for mere error and no more. Simmons v. North Carolina State Highway & Public Works Commission, N.C., 78 S.E.2d 308; Call v. Stroud, 232 N.C. 478, 61 S.E.2d 342; Wilson v. Suncrest Lumber Co., 186 N.C. 56, 118 S.E. 797. I am constrained to the view that the verdict and judgment below should be upheld.