Jones v. Bess

HEDRICK, Judge. The one question for resolution on this appeal is whether the trial, judge sufficiently and correctly declared and explained the law arising on the evidence in the case as he is required to do pursuant to G.S. 1A-1, Rule 51. In declaring and explaining the law arising on the evidence in the case “[t]he judge shall not be required to state such evidence except to the extent necessary to explain the application of the law thereto . . . . ” G.S. 1A-1, Rule 51(a), Rules of Civil Procedure. A statement of . the contentions of the parties together with a bare declaration of the law in general terms is not sufficient. Brady v. Smith, 18 N.C. App. 293, 196 S.E. 2d 580 (1973). “[T]he jury must be given guidance as to what facts, if found by them to be true, would justify them in answering the issues submitted to them in the affirmative or the negative. Credit Co. v. Brown, 10 N.C. App. 382, 178 S.E. 2d 649.” Broadnax v. Deloatch, 20 N.C. App. 430, 201 S.E. 2d 525 (1974). See also, Smith v. Kappas, 219 N.C. 850,15 S.E. 2d 375 (1941). In the instant case, the trial judge summarized the evidence presented, sufficiently and correctly defined negligence and proximate cause, and explained to the jury that the operator of a motor vehicle has the duty to maintain a reasonable lookout, the duty to maintain proper control of the vehicle, and the duty to sound the horn when attempting to pass' another vehicle traveling in the same direction. The court also explained to the jury [5] the duty of care imposed on an operator of a motor vehicle when he sees or by the exercise of ordinary care should see children on or near the highway. The court then explained to the jury that failure of the defendant to abide by the above rules of the road would amount to negligence and that failure to sound her horn when passing a bicycle would constitute one circumstance, to-be considered in determining the defendant’s, negligence. In our opinion, however, the trial court failed to properly apply these principles of law to the evidence arising in the case in that it did not give any guidánce to the jury as “to what facts, if found by them to be true, would justify them in answering the issues submitted to them in the affirmative or the negative”. Broadnax v. Deloatch, supra. Nowhere in the charge did the court bring into view for the benefit of the jury the relationship between the evidence adduced at the trial and the issues involved. Bulluck v. Long, 258 N.C. 577, 124 S.E. 2d 716 (1962) ; Therrell v. Freeman, 256 N.C. 552, 124 S.E. 2d 522 (1962). For example, nowhere in his charge did the judge explain to the jury that if they found from the evidence and by its greater weight that the defendant violated any of the rules of the road applicable in this case and that if such violation or any of them was one of the proximate causes of the injury and death of plaintiff’s intestate that it would be their duty to answer the first issue (the issue of defendants’ negligence) in the affirmative or if they failed to so find that they would answer such issue in the negative. The failure of the trial judge to sufficiently comply with the mandate of Rule 51 (a) in this case is demonstrated by the fact that the jury returned to the courtroom and requested the judge to clarify what constituted negligence on the part of the “driver in this particular situation”. Thereafter, the trial judge repeated substantially the instructions earlier given without additions or corrections so as to give the guidance requested by the jury or required by the rule. For error in the charge, there must be a New trial. Judges Britt and Martin concur.