Walser v. Coley

CAMPBELL, Judge. Plaintiff excepted and assigns as error certain portions of the charge given by the judge to the jury. The judge instructed the jury that the defendant claimed that if he was negligent, the plaintiff was also negligent in riding with him and assuming the risk of riding with him when he was driving “as she alleges he was driving and under the condition of intoxication which she alleges, or under the influence of intoxicating beverage which he alleges was his condition on this occasion; that therefore, she should not be entitled to recover if she suffered any injuries.” This was a misstatement of the allegations of the plaintiff because she did not make any allegations in her complaint that the defendant was driving while in an intoxicated condition. Later in the charge when instructing the jury on the second issue of contributory negligence, the judge instructed the jury that a passenger is not absolved from all care for her personal safety but is under the duty of exercising ordinary or reasonable care to avoid injury “particularly when the guest or passenger knows the driver is operating the automobile in a careless or reckless manner or under the influence of some intoxicating beverage, then the duty devolves on her for taking means for her own protection by word or act, it may be her duty to restrain or warn the driver from acts of negligence or from violation of the law.” Again, at the conclusion of the charge and after counsel for the defendant had approached the bench and conversed with the judge, the judge instructed the jury: “Members of the Jury, it has been pointed out that I may have made an error and misread something to you relative to riding with a person under the influence — as to the second issue I charge you that it is negligence per se for one to operate an automobile while under the influence of some intoxicating beverage. I instruct you further that if one enters a car with the knowledge that the driver is [658] under the influence of intoxicating beverage and voluntarily rides with him, that person is guilty of contributory negligence per se.” At no point in the charge to the jury did the judge instruct the jury that the plaintiff had at all times contended and offered evidence to the effect that she did not know that the defendant was under the influence of any intoxicants to the extent that his mental or physical faculties were appreciably impaired; that at all times the defendant, when observed by the plaintiff, was acting, walking, talking, dancing and conducting himself in a normal manner. We think the plaintiff was entitled to have the judge, in instructing the jury, apply the law to the various factual situations brought out in the evidence. The judge failed to do this with the result that the tenor of the charge was slanted in favor of the defendant on the second issue of contributory negligence. This was prejudicial to the plaintiff and necessitates a new trial. New trial. Chief Judge Brock and Judge Britt concur.