Buffkin v. Gaskin

Campbell, J. This appeal presents two questions. One, should the case have been dismissed upon motion for judgment as of non-suit? Two, did the trial court commit error in the charge? The evidence was submitted under Rule 19(d)(2) but the appellant did not comply with the rules of this Court in that no appendix was affixed to the brief summarizing the testimony that the defendant relies upon to sustain the motion for judgment as of nonsuit. For failure to comply with the rules of this Court in this regard, this Court, ex mero mo tu, will refuse to consider the evidence and will deem this assignment of error as abandoned. Despite this ruling, we engaged upon a voyage of discovery and went through the transcript of the record. There was ample evidence to sustain a finding of negligence on the part of the defendant. Nonsuit on the ground of contributory negligence of the plaintiff is allowed only when the plaintiff’s evidence considered in the light most favorable establishes the plaintiff’s negligence as a “proximate contributing cause of the injury so clearly that no other conclusion reasonably can be drawn therefrom.” Hughes v. Vestal, 268 N.C. 450, 150 S.E. 2d 752; White v. Mote, 270 N. C. 544, 155 S.E. 2d 75. While the evidence was sharply conflicting, we think that the case was properly submitted to the jury on the issues of negligence and contributory negligence. [566] The defendant assigns as error the charge to the jury by the trial court: “All the evidence in this case tends to show that it was after dark or at night within the meaning of the statute. Now, I further instruct you, members of the jury, that this requirement of the statute is applicable to towed vehicles. Such tail lights on the rear of a wrecker or a towing vehicle does not constitute a sufficient compliance with the statute. To comply with the statute, a motorist must have such visible tail lights on the towed vehicle. I instruct you, members of the jury, that the operation of a motor vehicle at night without such visible tail lights on the towed vehicle in violation of the statute is negligence per se, or negligence in itself, or negligence as a matter of law. * * * Finally as to this first issue, members of the jury, I instruct you that if the plaintiffs have satisfied you from the evidence and beyond a reasonable doubt that on the night of March the 13th, 1965, at about 8:00 o’clock P.M. on Highway 904 about two or three miles west of Tabor City, North Carolina, that the defendant, Mr. Gaskin, did operate his wrecker on said highway and did with said wrecker tow another motor vehicle and that the towed vehicle did not have on its lamps exhibiting a red light plainly visible under normal atmospheric conditions for a distance of 500 feet to the rear of such towed vehicle, then I instruct you that the defendant would be negligent; and if you further find from the evidence and by the greater weight of the evidence that such negligence was one of the proximate causes of the collision between the vehicles and resulting injury to the plaintiffs, then it would be your duty to answer this first issue in favor of the plaintiffs, that is ‘yes.’ If you fail to so find, members of the jury, then it would be your duty to answer this issue in favor of the defendant, that is 'no.’ ” We find no error in this instruction insofar as the defendant is concerned. As a matter of fact, the instruction placed a greater burden on the plaintiffs than the law requires, for that the trial court required the plaintiffs to establish this fact “beyond a reasonable doubt” rather than “by the greater weight of the evidence.” This undue burden placed upon the plaintiffs cannot be taken advantage of by the defendant. We have reviewed all of the assignments of error and find no error in the trial of this case. Affirmed. Britt and Morris, JJ.. concur.