Brady v. Smith

MORRIS, Judge. Defendant’s assignments of error on appeal primarily relate to the judge’s charge to the jury. Among those assignments of error is defendant’s contention that the judge failed properly to explain the law arising upon the evidence as required by G.S. 1A-1, Rule 51. We feel that defendant’s exception is well taken. An examination of the record reveals that the trial judge defined burden of proof, negligence, and proximate cause in general terms and then recapitulated the evidence, the conten [295] tions of the parties, and instructed as to measure of damages. He failed, however, to declare and explain the law arising on the evidence. The record is void of any instruction to the jury as to what facts if found by them to be true would constitute negligence on the part of defendant. The defendant was entitled, among other things, to have the court instruct as to his duty to keep and maintain a proper lookout, his duty to keep his vehicle under control, and his duty to operate a motor vehicle at a speed that is reasonable and prudent under the conditions then existing. “[A] statement of the contentions of the parties together with a bare declaration of the law in general terms is not sufficient to meet the requirements of the provisions of G.S. 1-180.” Hawkins v. Simpson, 237 N.C. 155, 157, 74 S.E. 2d 331 (1953). For the failure of the trial judge properly to apply the law arising upon the evidence and for other errors in the charge, there must be a new trial. We deem it unnecessary to discuss his remaining assignments of error. Plaintiff on appeal contends that the trial judge erred in failing to tax the costs of the action aganist the defendant who lost at trial and in refusing to allow plaintiff’s attorney to be heard on motion for an allowance of counsel fees under G.S. 6-21.1. . Plaintiff’s exception as to the taxing of costs is well taken, and if plaintiff prevails upon retrial of this case, he will be entitled to have all items properly included as costs taxed against the defendant. G.S. 6-1 clearly provides that “[t]o the party for whom judgment is given, costs shall be allowed as provided in Chapter 7A and this Chapter.” Plaintiff’s contention that the trial judge refused to hear his motion for counsel fees pursuant to G.S. 6-21.1 is totally without merit. The record clearly reveals that his motion was entertained and denied by the trial judge. Allowance of counsel fees pursuant to G.S. 6-21.1 is in the discretion of the trial judge and we find no abuse on his part. New trial. Judges Britt and Vaughn concur.