Pardue v. Michigan Millers Mutual Insurance

Bobbitt, J. Defendant contends plaintiff’s action should have been nonsuited on the ground her testimony establishes her contributory negligence as a matter of law. In this connection, it is noted that evidence, in addition to that referred to in our preliminary statement, included testimony that it was rainy and foggy as plaintiff approached the scene of collision. Suffice to say, we are of opinion and hold that the evidence, when considered in the light most favorable to plaintiff, was sufficient to withstand defendant’s motion for judgment of nonsuit and to require submission to the jury of all issues raised by the pleadings. Defendant excepted to and assigns as error the following portion of the court’s charge, viz.: “Now, members of the jury, the plaintiff on the other hand says and contends under this set of circumstances and this set of facts that if the plaintiff didn’t recover from this defendant that she is out in the cold, that she can’t recover, that she has attempted to recover from Ben Bullis, as this evidence shows. These executions were run and that nothing could be found and that she has exhausted her remedy and that therefore the only remedy she has is to collect from Michigan Millers Mutual Insurance Company.” The contentions referred to in the quoted excerpt are not pertinent to a determination of any of the issues raised by the pleadings. They urge a verdict against defendant based on sympathy for plaintiff rather than on plaintiff’s right to recover. If made by counsel, it would be the duty of the court, upon objection, to instruct the jury that the matters referred to in these contentions should be disregarded and given no consideration in arriving at their verdict. Hamilton v. Henry, 239 N.C. 664, 80 S.E. 2d 485, and cases cited; S. v. Smith, 240 N.C. 631, 83 S.E. 2d 656, and cases cited. The court, by its recital and review thereof, in effect sanctioned said contentions and advised the jury that plaintiff’s dilemma and plight, in the event she failed to recover from defendant, were proper matters for consideration in arriving at their verdict. Under such an instruction, it seems probable the chivalry and compassion of the jurors of Wilkes would move them to take such action as might be necessary to keep plaintiff from being left “out in the cold.” We are constrained to hold the court’s inadvertent error materially prejudiced defendant and entitles it to a new trial. [85] Defendant’s other assignments of error involve questions that may not arise upon the next trial. Discussion thereof in the context of the evidence in the present record is deemed unnecessary and inappropriate. New trial. Moore, J., not sitting.