Howard v. Carman

ValbNTINb, J. Tbe only exceptions appearing in tbe record requiring express consideration are those based on these exceptions: (1) Assignment No. 11: “Tbe court, after making tbe statement to tbe jury . . . regarding certain principles of law applicable to tbe trial of tbe cause, directed tbe jury to answer tbe first issue in tbe manner the jury might find tbe facts to be without explaining" and directing tbe jury as to tbe law applicable to tbe evidence elicited upon tbe trial of tbe cause; and failed to explain to tbe jury and give instructions as to tbe rights of defendant if tbe jury should find from tbe evidence, for instance, that tbe defendant bad reached and entered tbe intersection . . . before plaintiff M. L. Howard bad reached it, and failed to direct tbe jury as to tbe rights of tbe defendant and tbe liability of tbe plaintiff in other material aspects of tbe evidence introduced on tbe trial of tbe cause.” (2) Assignment No. 12: “In tbe charge of tbe court upon tbe second issue, tbe court simply called attention to some of the contentions of tbe parties and directed tbe jury to answer tbe issue as they might find tbe facts to be without any attempt to apply tbe law to tbe evidence before tbe court and tbe jury applicable to this issue.” Tbe second issue relates to contributory negligence, alleged against plaintiff M. L. Howard in bis ease. It is provided in G.S. 1-180, as amended by Chapter 107 of 1949 Session Laws, that in jury trials tbe judge “shall declare and explain tbe law arising on tbe evidence given in tbe case.” And tbe decisions of this Court are uniform in bolding that tbe failure of the presiding judge to declare and explain tbe law arising upon tbe evidence is'and will be held for error. See Ryals v. Contracting Co., 219 N.C. 479, 14 S.E. 2d 531, and cases cited. See also, among many later cases to like effect, S. v. Ardrey, 232 N.C. 721, 62 S.E. 2d 53. It is there stated that “in interpreting this statute tbe authoritative decisions are to tbe effect that it ‘confers upon litigants a substantial legal right and calls for instructions as to tbe law upon all substantial features of tbe case;’ and, further, that tbe requirements of tbe statute ‘are not met by a general statement of legal principles which bear more or less directly, but not with absolute directness upon tbe issues made by tbe evidence,’ ” citing Williams v. Coach *292 Co., 197 N.C. 12, 147 S.E. 435; S. v. Groves, 121 N.C. 563, 28 S.E. 262; Nichols v. Fibre Co., 190 N.C. 1, 128 S.E. 471. It is also held that tbe failure of tbe court to instruct tbe jury on substantial features of tbe case arising on tbe evidence is prejudicial, and tbis is true even tbougb there be no request for special instruction to that effect. See Spencer v. Brown, 214 N.C. 114, 198 S.E. 630; S. v. Ardrey, supra, and numerous other cases. In tbe light of tbe provision of tbe statute as so interpreted by tbis Court, and tbe evidence offered by tbe respective parties being in sharp conflict, it became tbe duty of tbe trial judge to declare and explain tbe law arising upon the evidence in tbe case, as tbe jury should find tbe facts to be. Tbe evidence is susceptible of an inference that tbe defendant entered tbe intersection before tbe plaintiff, M. L. Howard, did, and hence, defendant is entitled to have the trial judge declare and explain tbe principles of law applicable to rights of parties at an intersection. See S. v. Hill, 233 N.C. 61, 62 S.E. 2d 532, where in opinion by Ervin, J., such principles are set forth. It does not appear that tbe court so charged the jury. Likewise, it appears that assignment of error No. 12 is well taken. The testimony of M. L. Howard, if found to be true, is susceptible of the inference that, after seeing the automobile of defendant, he failed to exercise reasonable care to avoid a collision. This is a question for the jury under proper instructions from the court. The questions presented by the other exceptions may not arise at the next trial and for that reason will not be discussed here. The failure of his Honor to properly charge the jury as above indicated constitutes reversible error and entitles the defendant to a new trial, and it is so ordered. New trial.