Townsend ex rel. Carter v. Noah Akers Frye

VAUGHN, Judge. All of appellants’ assignments of error are directed to the charge of the court. Plaintiffs assign as error the failure of the trial judge to instruct the jury with respect to a motorist’s right, in the absence of anything which should give him notice to the contrary, to assume and to act on the assumption that other drivers will observe the rules of the road and stop in obedience to a traffic signal. We agree that this principle of law arose on the evidence in the case and that the court failed to give the appropriate instruction. In Lowe v. Futrell, 271 N.C. 550, 157 S.E. 2d 92, it was held that “a bicycle is a vehicle and its rider is a driver within the meaning of the Motor Vehicle Law. G.S. 20-38(38).” G.S. 20-4.01(49). The North Carolina Supreme Court, in Wrenn v. Waters, 277 N.C. 337, 177 S.E. 2d 284, reaffirmed the rule that when instructing a jury as to the contributory negligence issue, the judge must instruct the jury that in the absence of anything which gives or should give notice to the contrary, a motorist has the right to assume and to act on the assumption that opposing drivers will observe the rules of the road and stop in obedience to a traffic signal and that failure to so charge is prejudicial error that requires a new trial. This Court in Houston v. Rivens, 22 N.C. App. 423, 206 S.E. 2d 739, held that the specific language of Wrenn v. Waters, supra, need not be employed if the instruction given, when viewed as a contextual whole can be found to be tantamount to an instruction on the plaintiffs’ right to assume that other motorists would comply with the rules of the road. In the case at bar, however, a review of the entire charge discloses that the judge failed to give an instruction equivalent to what was required. The judge did tell the jury that plaintiff “says and contends . . . that ... he had the right to believe that the defendant would observe the traffic light. ...” It is fundamental, however, that the judge must explain and apply the law to the [638] specific facts of the case. A statement of what the parties contend the law to be is insufficient. Plaintiffs also assign as error the failure of the judge to instruct the jury that a child between the ages of 7 and 14 is presumed to be incapable of contributory negligence. In the case of Hoots v. Beeson, 272 N.C. 644, 159 S.E. 2d 16, the Supreme Court held that when contributory negligence is an issue and a minor between the ages of 7 and 14 is the plaintiff, the trial court must instruct the jury that there is a rebuttable presumption that an infant between the ages of 7 and 14 years is incapable of contributory negligence. The presumption runs in favor of the child and must be overcome by the defendant. This presumption may be overcome with evidence showing that “ . . . the child did not use the care which a child of its age, capacity, discretion, knowledge, and experience would ordinarily have exercised under the same or similar circumstances.” Hoots v. Beeson, supra, at 651. The presumption is a substantial feature of the case. In the case at bar the judge not only failed to state the presumption but failed to state the complete standard by which it could be rebutted. The final assignment of error relates to the judge’s instruction that if they found the minor plaintiff contributorily negligent, they should not consider the damage issue on the mother’s claim for loss of service and medical expenses. The judge’s decision being, of course, that the minor’s contributory negligence would bar recovery by the mother. The action for the minor’s injuries was brought by the mother as guardian ad litem. The mother’s own action for loss of the child’s service was consolidated for trial with the minor’s action and the same counsel represented both plaintiffs. The mother, of course, participated in the consolidated trial. The precise question thus presented does not appear to have been answered by the Supreme Court. In Kleibor v. Rogers, 265 N.C. 304, 144 S.E. 2d 27, the father brought suit to recover for loss of his son’s services and for medical expenses. Defendant denied negligence and pleaded the son’s contributory negligence. In an earlier action brought by the son through his mother as next friend, the jury had found contributory negligence on the part of the son. Judgment in accordance with the verdict had been entered. Defendant in Kleibor pleaded the prior [639] judgment as res judicata. On appeal the Supreme Court said: “The sole question presented on this appeal is whether the fact the contributory negligence issue was answered ‘yes’ in the prior action, standing alone, constitutes a bar to this action.” Kleibor v. Rogers, supra, at 306, 307. The Court, noting the absence of identity of parties and the absence of an allegation that the father participated in the earlier action, held that the bare plea of the verdict did not bar the action. The Court went on to say, however, that: “Unquestionably, the contributory negligence of his minor son, if established in this action, would constitute a bar to plaintiff’s recovery herein. See Lee, op. cit. p. 118, note 53, for supporting authorities.” Kleibor v. Rogers, supra, at 306. Notwithstanding what would seem to be the unequivocal language of the Supreme Court which we have just quoted, we must take note of language found in a later decision. In Clary v. Board of Education, 285 N.C. 188, 203 S.E. 2d 820, an action was instituted by a father as guardian ad litem for his minor son. The father also started an action for medical expenses incurred by him for his son’s injuries. The son was injured while practicing basketball at a school operated by defendant. The cases were consolidated for trial. The trial court’s dismissal of both actions, because of the son’s contributory negligence, was affirmed by the Court of Appeals. Clary v. Board of Education, 19 N.C. App. 637, 199 S.E. 2d 738. After review by the Supreme Court, that Court affirmed but not for the reasons stated by the trial court or the Court of Appeals. The Supreme Court concluded that plaintiffs had not offered sufficient evidence to take their cases to the jury (on matters not material here). It is the Court’s comment on the question of the effect of the son’s alleged contributory negligence on the father’s action that is relevant to our decision here. The Court said: “In each action, the Superior Court granted the defendant’s motion for a directed verdict on the ground that the child was guilty of contributory negligence. There was neither allegation nor evidence of contributory negligence by the father himself or that the child, at the time of the injury, was acting as the father’s agent.” Clary v. Board of Education, supra, at 193. [640] After its holding that plaintiff had failed to make a case for the jury, the Court went on to say that “we do not reach and we express no opinion” on the following questions: “(2) Did the evidence of the plaintiffs show that the plaintiff child, in carrying out his assignment, was guilty of contributory negligence as a matter of law? (3) If so, does such contributory negligence of the child bar the father’s right to recover in his action ?” Clary v. Board of Education, supra, at 193. Later the Supreme Court allowed plaintiffs’ petition for a rehearing of the case. After the rehearing the Court withdrew its earlier decision and remanded the cases for a new trial in the Superior Court. Clary v. Board of Education, 286 N.C. 525, 212 S.E. 2d 160. In that decision the Court held that the evidence would permit but not require findings that defendant was negligent and that the minor plaintiff was contributorily negligent. The Court thus gave a negative answer to a question posed in its first decision in this case: “(2) Did the evidence of the plaintiffs show that the plaintiff child . . . was guilty of contributory negligence as a matter of law?” The Court was not presented with and did not comment on the final question posed in its first decision: “If so, does such contributory negligence of the child bar the father’s right to recover in his action?” That question, however, has been presented in the case before us and must be answered. We hold that if, at the new trial, the child is found to have been contributorily negligent, the child’s contributory negligence will bar the mother’s right to recover for loss of the child’s services and medical expenses for the child. It appears that our holding is consistent with that of most of the courts in other jurisdictions that have decided the question. For the reasons heretofore stated, there must be a new trial. New trial. Judges Morris and Clark concur.