Ford ex rel. Ford v. Jones

GRAHAM, J. After reviewing the evidence with commendable accuracy the-court instructed the jury that the plaintiff was invoking the alleged-violation by defendant of one or more statutes including the statute on reckless driving. The court then stated the provisions of the reckless driving statute (G.S. 20-140) and other statutes allegedly violated and charged: “[T]hat if the plaintiff has fulfilled the responsibility put upon, him by law to the extent that the evidence, by its quality and convincing power, has satisfied you by its greater weight, that, at the time and place complained of the defendant Willie Jones-was negligent either in respect to reckless driving or in failing, to keep a proper lookout, or in failing to yield right of way as the court has defined those terms to you; that it would be your duty to answer the second issue ‘YES’. If, on the other hand, the plaintiff has so failed to satisfy you as to one or all of those-allegations or things, the court charges you it will be your duty to answer the second issue ‘NO’.” In instructing as to the minor plaintiff’s negligence the court, stated: “I have given you earlier in this charge while discussing, the second issue [negligence of defendant Jones] the law as it relates to reckless operation — reckless driving.” The court then charged that if the jury found that on the occasion complained of the minor plaintiff operated her automobile on a public highway or street at the time and place complained of and was negligent in that she drove her automobile recklessly or violated other enumerated, statutes and that such act or acts was a proximate cause of the collision the issue as to the minor plaintiff’s negligence should be answered yes. Plaintiffs assign as error the summarized portions of the charge-contending that (1) the evidence was insufficient to support a charge as to reckless driving and (2) that if the evidence was sufficient the court nevertheless erred by failing to adequately explain the law of reckless driving and to apply the law to the facts of the case. Before a breach of law or duty may be submitted for jury determination there must be both allegation and proof of such breach. Motor Freight v. DuBose, 260 N.C. 497, 113 S.E. 2d 129; Sugg v. Baker, 258 N.C. 333, 128 S.E. 2d 595. Where there is no evidence-that the person charged with negligence drove his vehicle in such a. manner as to constitute reckless driving it is error for the court to-charge that reckless driving is an element of negligence to be considered by the jury. Roberts v. Freight Carriers, 273 N.C. 600, 160 [725] S.E. 2d 712; Williams v. Boulerice, 269 N.C. 499, 153 S.E. 2d 95; Dunlap v. Lee, 257 N.C. 447, 126 S.E. 2d 62; Nance v. Williams, 2 N.C. App. 345, 163 S.E. 2d 47. We conclude that the evidence and pleadings in this case afford a basis for an instruction on reckless driving as an element of negligence. There was evidence from which the jury could find that when the minor plaintiff was a considerable distance from the intersection she saw defendants’ car approaching the intersection at a high rate of speed and that she nevertheless continued toward the intersection at an excessive and unlawful speed; that she failed to apply her brakes or bring her car under control until it was too late to avoid the collision; and that she entered the intersection and struck defendants’ vehicle in the side at a time when defendants’ vehicle was already in the intersection and had the right of way. The jury could further find that such acts import a thoughtless disregard for the consequences or a heedless indifference to the safety and rights of others. Such findings would support a conclusion that the minor plaintiff operated her car in violation of G.S. 20-140. That would constitute negligence per se and, if a proximate cause of the collision, would constitute actionable negligence. We further conclude, however, that the instructions given were insufficient in that the court did not adequately explain the law of reckless driving and did not explain to the jury, as required by G.S. 1-180, what facts they might find from the evidence that would constitute reckless driving. It is error for a trial court to read the provisions of a statute to a jury without giving an explanation thereof in connection with the evidence where such explanation is necessary to inform the jury as to the meaning of the statute and as to its bearing on the case. Lewis v. Watson, 229 N.C. 20, 47 S.E. 2d 484; Toler v. Brink’s, Inc., 1 N.C. App. 315, 161 S.E. 2d 208. The jury must not be left to apply the law to the facts and to decide for themselves what the party did, if anything, which would constitute reckless driving. Roberts v. Freight Carriers, supra; Ingle v. Transfer Corp., 271 N.C. 276, 156 S.E. 2d 265; Sugg v. Baker, supra; Dunlap v. Lee, supra. The charge given by the court here is similar to instructions considered and found defective in other recent cases. Roberts v. Freight Carriers, supra; Ingle v. Transfer Corp., supra; Nance v. Williams, supra. We find the following in Ingle v. Transfer Corp., supra at p. 284: “The language in each section of the reckless driving statute, G.S. 20-140, defines culpable negligence. Dunlap v. Lee, supra. ‘Culpable negligence is such recklessness or carlessness, prox [726] imately resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others.’ State v. Cope, 204 N.C. 28, 30, 167 S.E. 456, 458. The intentional, wilful or wanton violation of a safety statute or ordinance which proximately results in injury is culpable negligence; an unintentional violation, unaccompanied by recklessness or probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, is not. State v. Cope, supra.” In Roberts v. Freight Carriers, supra, Sharp, J., stated at p. 609: “Once the judge has given the jury the instructions which the pleadings and evidence require on the law of civil negligence, there is no need for him to superimpose an explanation of the law of criminal negligence. If plaintiff’s evidence does not establish civil negligence, a fortiori, it will not prove reckless driving, which is criminal negligence. If, however, a party has properly pleaded reckless driving and the judge undertakes to charge upon it, G.S. 1-180 requires him to tell the jury what facts they might find from the evidence would constitute reckless driving. It is not sufficient for the judge to read the statute and then (as he did here) leave it to the jury to apply the law to the facts and to decide for themselves what defendant’s driver did, if anything, which constituted reckless driving.” We hold that the portion of the charge excepted to constitutes prejudicial error requiring a new trial. New trial. Campbell and PARKER, JJ., concur.