Horne ex rel. Horne v. Wall

ARNOLD, Judge. ■ Plaintiffs allege that the trial judge erred in his instructions to the jury by failing to relate and apply the law to the [375] plaintiffs’ factual contentions. G.S. 1A-1, Rule 51 requires that the trial judge summarize the material aspects of the evidence sufficient to bring into focus the controlling legal principles. Clay v. Garner, 16 N.C. App. 510, 192 S.E. 2d 672 (1972). “Rule 51 requires th,e trial judge to perform two positive acts: (1) to declare and explain the law arising on the evidence presented in the case; and (2) to review such evidence to the extent necessary to explain the application of that law to the particular facts and circumstances of the case.” Bodenheimer v. Bodenheimer, 17 N.C. App. 434, 435, 194 S.E. 2d 375 (1973). Rule 51 confers a substantial legal right, not dependent on a request for special instructions, and failure to charge on the material features of the case is prejudicial error. Investment, Properties v. Norburn, 281 N.C. 191, 188 S.E. 2d 342 (1972); Clay v. Garner, supra. In the instant case, plaintiffs presented evidence attempting to establish that defendant was 349 feet away from the plaintiff at the time of plaintiff’s first fall. This would mean that defendant drove over 100 yards toward plaintiff while plaintiff was struggling on the ice attempting to get out of the way. The distance between plaintiff and defendant, at the time defendant became aware of the dangerous situation, was critical to plaintiffs’ effort in establishing defendant’s duty of care. It was error for the trial judge not to mention this critical factual situation and relate the applicable principle of law in his charge to the jury. Plaintiffs, in their next assignment of error, allege that the trial judge erred by making factual statements in his charge which were not in evidence and were material to the issue of negligence. The trial judge repeatedly stated that the plaintiff was trying to “beat the truck to his driveway.” The statement implies that the plaintiff was racing the truck to his driveway. The implication existed in spite of the fact that the trial judge corrected himself when he said that the plaintiff was racing. [“I keep using the word race which I should not use.”] Defendant presented no evidence tending to establish that the plaintiff was “trying to beat the truck to his driveway.” It was prejudicial error for the court to submit for the consideration of the jury facts material to the issue which are not supported by evidence. Dove v. Cain, 267 N.C. 645, 148 S.E. 2d 611 (1966) ; Curlee v. Scales, 223 N.C. 788, 28 S.E. 2d 576 (1944). [376] Since plaintiffs are entitled to a new trial we see no reason to discuss the remaining assignments of error. . New trial. Judges Morris and Hedrick concur.