Textile Motor Freight, Inc. v. DuBose Ex Rel. Convey

DeNNY, C.J. The defendants assign as error certain portions of tlhe following instructions -to the jury: (1) “Now, members of the jury, there is another statute which 'states in part as follows: ‘The driver of any vehicle upon a highway, before starting, stopping or turning from ■a direct line, shall first see that such movement can be made 'in safety, (I) and if, whenever the operator of any other vehicle may be affected by -such movement, shall give a signal as required in this section, plainly visible to- the 'driver of such other vehicle of his intention to make such a move, -and the signal .shall be 'by means off the hand and arm and manner herein specified or by any mechanical or electrical signal device approved by the Department of Motor Vehicles,’ and the signal for left turn, members of the jury, is with the left hand, tine hand and arm extended- in ia horizontal direction with the forefinger pointed and the electrical turn signal referred to is such electrical turn signal which when operated inside by a lever or switch, inside -the motor vehicle, shall start ia blinking light -outside tire motor vehicle, indicating the direction to which -the -operator intends turning his- motor vehicle. (J); iarad (2) “* * " (I)f the plaintiff has satisfied you from the evidence and -by its greater weight, -that each and -all of the following three essential elements existed with respect to- plaintiff’s damage; first, that the plaintiff’s tractor was damaged -in -a collision at the intensee-ti-om of Independence B-oulevaxd and Commonwealth 'and Eastway Drive, ¡and, second, that at and prior to the collision between the tractor-trailer of the plaintiff and the Volvo- being opierafed -by the defendants, that at -and prior to- the collision that the defendants were negligent in the operation of the Volvo in that they (S) operated it at a high -and dangerous rate of speed under’ the ciroumisfanioes them and there existing, (T) or operated it without keeping a proper lookout or operated it without keeping it under proper control, or attempted to make a left turn -without seeing first that the turn could be made in safety (U) and without giving the proper and lawful signal for that left turn; (V) and, third, that such negligence on the part of the defend- *501 amts in- the operation oí said Volvo automobile was one of the proximate causes of the ¡collision and of the damages to the plaintiff’s tractor, then it would be your duty to answer the first issue YES.” The defendants except -to and assign a.s error those portions of the charge between.' the letters (I) and (J), (S) and (T), and (U) and (V). The only evidence with respect to ¡the speed o,f 'the Volvo car operated by the minor defendant was that of the plaintiff’s driver who testified, “When I first saw the ¡small foreign oar in the northern lane of Independence Boulevard for ©astbound traffic it was going about 10 or 15 mileis ¡an ¡hour. After I first saw it, it headed on in towards Bastway Drive ¡and speeded up as it went across the intersection.” No evidence was adduced in the trial below to .support the plaintiff’s allegation to the effect that the minor defendant failed to give a proper ■hand signal or other warning of an intention to make a left turn. The headnote in the ease of Farrow v. White, 212 N.C. 376, 193 S.E. 386, reads: “Where there is. no allegation or evidence that the defendant driver failed to give ¡a warning signal required of him by the statute under the circumstances, it is error for the ¡court to charge the law requiring the .giving ioif ¡such signal, since .the court is required to charge the law arising upon the evidence, C.S., 564” (now G.S. 1-180). (Emphasis added.) I a Andrews v. Sprott, 249 N.C. 729, 107 S.E. 2d 560, this Court said: “* * * .(>.0^ committed error in ¡charging with respect to the defendant's ¡operation oí ¡his ¡oar at a reckless rate of speed. * * * The complaint ¡does not ¡allege and the ¡eviden.ce ¡does not show speed. It is error to charge ¡on ¡am ¡abstract principle ¡of law not supported by any view .of the evidence. Worley v. Motor Co., 246 N.C. 677, 100 S.E. 2d 70; S. v. McCoy, 236 N.C. 121, 71 S.E. 2d 921; Williams v. Harris, 137 N.C. 460, 49 S.E. 954.” See also Carswell v. Lackey, 253 N.C. 387, 117 S.E. 2d 51. The defendants have not argued in their brief their ¡assignment of error to the failure of the ¡court ¡below to .sustain their motion for judgment ¡as of nonsuit interposed at the close ¡of all the evidence. Consequently, ¡this assignment of error will be taken as abandoned. Rule 28 of the Rules of Practice in the Supreme Court, 254 N.C. 783, at page 810. We deem .it unnecessary to consider and pass upon the other assignments of error, some of which seem not to be without merit. In our opinion, the defendants are entitled to a new trial, ¡and it is so ¡ordered. New trial.