Pelkey v. Bynum

Mallard, C.J. Defendant assigns as error the denial of her motion for judgment of nonsuit of plaintiff’s cause of action renewed at the close of all the evidence. The collision occurred on 2 November 1966 at about 3:30 p.m. at the intersection of Raeford Road (U. S. Highway #401) and Robeson Street in Fayetteville. Raeford Road extends generally in a northeast-southwest direction, and Robeson Street extends generally in a northwest-southeast direction. The traffic at this intersection was controlled by electric traffic control signals. It was raining and the pavement was wet. Plaintiff offered evidence tending to show that she was operating her 1966 Ambassador automobile in a careful and prudent manner on the Raeford Road going in a northeastern direction at the time and place of the collision. That as she approached and entered the intersection, she had the green traffic control signal facing her. After plaintiff was approximately three-fourths of the way through the intersection, the defendant, having entered the intersection after plaintiff’s vehicle was already in it, collided with plaintiff’s vehicle. As a result of the collision, the plaintiff was injured and her automobile damaged. Defendant offered evidence tending to show that on this occasion she was operating her 1964 Buick automobile and stopped at this intersection for the red signal. She waited until the light turned [186] green, and after looking both ways and seeing nothing, she entered the intersection. While defendant was already in the intersection, plaintiff’s automobile entered and collided with her vehicle. As a result of the collision, defendant was injured and her automobile damaged. The evidence was contradictory; however, it was sufficient to withstand the defendant’s motion for judgment of nonsuit. The question was one for the jury. Discrepancies and contradictions in the evidence are matters for the jury and not the judge. Greene v. Meredith, 264 N.C. 178, 141 S.E. 2d 287; Jones v. Schaffer, 262 N.C. 368, 114 S.E. 2d 105. The court instructed the jury as follows with respect to G.S. 20-141 (a) and (c) : “No person shall operate a motor vehicle at any time at a speed greater than is reasonable and prudent under the circumstances then and there existing. The statute goes on to provide that even if the speed of the vehicle is lower than the posted or legal speed limit fixed by law, a driver approaching and entering an intersection has the duty to reduce speed as may be necessary to avoid colliding with other persons and vehicles, in compliance with the legal requirement to use due care. . . . I instruct you, members of the jury, that a violation of these provisions that I have just mentioned, that is, the provision requiring vehicles to be operated at a speed no greater than is reasonable and prudent under the circumstances then and there being, and to reduce the speed when approaching an intersection or where some special hazard exists, in a manner commensurate with this due care duty; the violation of either one of these statutes is negligence per se as a matter of law and you will keep that in mind as you measure the conduct of these twp drivers on the occasion in question. . . . Now, members of the jury, we come back to the first issue, keeping in mind that the plaintiff on this issue has the burden of proof from the greater weight of the evidence of satisfying you that on the occasion in question, Miss Bynum in operating her car was guilty of negligence in that she operated it at a speed greater than that reasonable and prudent under the circumstances then and there existing, or . . .” Defendant contends that the court committed error in its charge by instructing the jury on the question of a violation of G.S. 20-141 (a), relating to the operation of an automobile at a speed [187] that is greater than is reasonable and prudent under the conditions then existing. There was no allegation in the complaint or amended complaint that the defendant was operating her vehicle at a speed greater than reasonable and prudent. It is error for the judge to charge the jury as to matter not presented by allegation and supported by the evidence. Worley v. Motor Co., 246 N.C. 677, 100 S.E. 2d 70; Jackson v. McBride, 270 N.C. 367, 154 S.E. 2d 468. Defendant contends that the court committed error in instructing the jury on the question of the defendant’s violation of G.S. 20-141 (c). This statute relates to the failure, when necessary, to decrease speed of a vehicle in approaching and crossing an intersection. In this case the violation of the statute was alleged by the plaintiff, but there was no evidence as to whether the defendant did or did not decrease her speed on entering the intersection. There must be evidence, either circumstantial or direct, to support the allegation; if not, the court should not charge with respect to such allegation. It is error for the court to charge upon an abstract principle of law which is not presented by the allegations and is not supported by any view of the evidence. Motor Freight v. DuBose, 260 N.C. 497, 133 S.E. 2d 129; Worley v. Motor Co., supra; Jackson v. McBride, supra. We deem it unnecessary to consider and pass upon the other assignments of error, some of which appear to be not without merit. In our opinion, the defendant is entitled to a new trial, and it is so ordered. New trial. BkocK and PARKER, JJ., concur.