Dobson v. Honeycutt

WELLS, Judge. Plaintiffs contend that the trial court erred in its instructions to the jury. We agree and award plaintiffs a new trial. Defendants contend the trial court erred in dismissing their counterclaim. We disagree and affirm the trial court’s order. Plaintiffs’ Appeal Plaintiffs first assign error to the trial court’s refusal to give a peremptory instruction as to defendant Gloria Honeycutt’s negligence. The requested instruction was as follows: “[W]hen you come to the First Issue, the Court instructs you, that if you find the facts to be as the evidence tends to show, you will answer [712] that Issue Yes.” Peremptory instructions in an appropriate case have long been accepted practice in North Carolina. See 12 Strong’s N.C. Index, Trial § 31 (3d ed. 1978) and cases cited therein and Shuford, N.C. Civ. Prac. & Proc. § 51-4 (2d ed. 1981) and cases cited therein. When all the evidence offered suffices, if true, to establish the controverted fact, the Court may give a peremptory instruction — that is, if the jury finds the facts to be as all the evidence tends to show, it will answer the inquiry in an indicated manner. Denial of an alleged fact raises an issue as to its existence even though no contradictory evidence has been offered. Chisholm v. Hall, 255 N.C. 374, 121 S.E. 2d 726 (1961); see also Cutts v. Casey, 278 N.C. 390, 180 S.E. 2d 297 (1971). While we view the evidence in this case as entitling plaintiffs to an appropriate peremptory instruction, the instruction requested by plaintiffs was not appropriate and amounted to a request for a directed verdict. An appropriate peremptory instruction must make it clear that the jury should be guided by what they find the greater weight of the evidence to be and should make it clear that the jury may accept or reject the evidence: they may answer the issue either yes or no, that is, that they have a choice as to how they answer the issue. See, e.g., an approved form of instruction stated in Terrell v. Chevrolet Co., 11 N.C. App. 310, 181 S.E. 2d 124 (1971) and N.C. Pattern Jury Instructions — Civil 101.65 (1982). This assignment is overruled. In their second and third assignments of error, plaintiffs contend that in its instructions to the jury, the trial court failed to properly recapitulate the evidence and failed to properly apply the law to the evidence. At the time of the trial, the controlling statute, N.C. Gen. Stat. § 1A-1, Rule 51(a) of the Rules of Civil Procedure, provided: In charging the jury in any action governed by these rules, no judge shall give an opinion whether a fact is fully or sufficiently proved, that being the true office and province of the jury, but he shall declare and explain the law arising on the evidence given in the case. The judge shall not be required to state such evidence except to the extent necessary to explain the application of the law thereto; provided, the judge shall give equal stress to the contentions of the various parties. [713] The trial court’s summary of the evidence, in pertinent part, was as follows: The plaintiffs have offered evidence tending to show that on March 20th, 1984 at about 4:45 P.M., Mrs. Betty Evans Dobson was driving a 1976 Buick automobile in a southeasterly direction on a rural paved road in McDowell County; that her automobile collided with a 1973 Dodge automobile travel-ling in a northwesterly direction on the same rural paved road in McDowell County; that the 1973 Dodge automobile was driven by Mrs. Gloria Honeycutt; that the collision occurred southeast and left of the hillcrest .... The defendants offered evidence tending to show that on March 20th, 1984, at about 4:45 P.M., Mrs. Gloria Honeycutt was driving a 1973 Dodge automobile in a northwesterly direction on a rural paved road in McDowell County; that her son, age 6, was with her; that she does not remember the wreck; that her son told Officer Jones that she said “look out, that man is going to hit us, before she lost control of her car.” That her automobile collided with the 1976 Buick automobile driven by Mrs. Betty Evans Dobson which was trav-elling in a southeastern direction on the same rural paved road in McDowell County .... This statement of the evidence, failing as it did to even mention the compelling direct and circumstantial evidence that the Honey-cutt car was in the Dobson car’s lane of travel when the collision occurred, failed to give equal stress to the contentions of the parties. In its final mandate, the trial court applied the law to the evidence as follows: Finally, as to this issue, I instruct you that if the plaintiff has proved by the greater weight of the evidence that at the time of the collision, the defendant was negligent in one or more of the following respects either in that she operated her motor vehicle without keeping a reasonable lookout or without keeping it under proper control or without driving her vehicle as nearly as practicable within a single lane. I say, if the plaintiff has proved by the greater weight of the evidence that the defendant was negligent in any one or [714] more of these respects and if the plaintiff has further proved by the greater weight of the evidence that such negligence was a proximate cause of plaintiffs injury and damage, it would be your duty to answer this issue in favor of the plaintiff. On the other hand, if considering all the evidence, the plaintiff has failed to prove such negligence or proximate cause, then it would be your duty to answer this issue “no” in favor of the defendant. This instruction totally omitted any reference to the negligence of defendant Gloria Honeycutt in driving to the left of center (or crossing the center line), a vital aspect of this case. For errors in the jury instructions, there must be a new trial. Defendants’ Appeal Plaintiffs’ motion for a directed verdict on defendants’ counterclaim tested the legal sufficiency of the evidence to take the question of plaintiffs’ negligence to the jury and support a verdict for defendants. On the motion, defendants’ evidence must be taken as true, giving defendants the benefit of every reasonable inference to be drawn therefrom. Plaintiffs’ motion was not properly allowed unless it appears as a matter of law that defendants could not recover of plaintiffs upon any reasonable view of the facts which the evidence reasonably tended to establish. If, when so viewed, the evidence is such that reasonable minds could differ as to whether defendants were entitled to recover of plaintiffs, the motion was not properly granted. See Koonce v. May, 59 N.C. App. 633, 298 S.E. 2d 69 (1982) and cases cited therein. Applying these principles to the evidence in this case, we conclude that there was no evidence more than a scintilla of negligence on the part of Betty Dobson, Hunt v. Montgomery Ward & Co., 49 N.C. App. 642, 272 S.E. 2d 357 (1980) and that plaintiffs’ motion was properly allowed. The results are: As to plaintiffs’ appeal, New trial. As to defendants’ appeal, No error. [715] Judge Arnold concurs. Judge Parker concurs in the result.