Edna C. BAXLEY
v.
A. A. CAVENAUGH and James M. Cavenaugh.
No. 173
Supreme Court of North Carolina.
March 21, 1956.*70 Roland C. Braswell and Calvin B. Bryant, Goldsboro, for plaintiff-appellant.
Grady Mercer, Kenansville, for defendants-appellees.
BOBBITT, Justice.
The court, in reviewing defendant's testimony, stated to the jury: "He testified * * *, (and that the left-hand door that had not been so that it would not lock before the wreck, came open) * * *."
The court, in reviewing defendant's contentions, stated to the jury: "The defendant * * * says and contends * * * that he was driving with prudence and care and with due care, (but that a door that had not theretofore been so that it would fly open, on this occasion, because he leaned against it, flew open and caused him to fall out of this car onto the roadway and by so doing it got out of control and went into the yard upon which the Baxley house was situated)."
The court, in further reviewing defendant's contentions, stated to the jury: "(He says that that was not negligence on his part, that this was a pure accident for which he should not be held in negligence just because the door fell open and he fell out the door, and that he was not at fault, and therefore he says and contends you ought to answer the first issue in his favor.)"
The statements in parentheses are the bases for plaintiff's exceptive assignments of error.
Defendant's complete loss of control of the Ford car is established by his own testimony. All the evidence is to that effect. Consequently, the only question for decision was whether such loss of control was caused in whole or in part by defendant's failure to exercise due care to keep the Ford car under proper control.
We find no testimony in the record "that the left-hand door * * * had not been so that it would not lock," or that the lefthand door "had not theretofore been so that it would fly open." Defendant's complete testimony on this subject is quoted above.
The prejudicial effect of the court's inadvertent misstatement of the evidence relating to this crucial matter is emphasized by the court's recital in behalf of defendant of a contention to the effect that the collision was "a pure accident for which he should not be held in negligence just because the door fell open * * *." (Italics added.)
The court's statement of a material fact not in evidence, and the further statement predicated thereon of a contention in behalf of defendant that his loss of control of the Ford car was "a pure accident," considered together, constitute prejudicial error. Two lines of authority, which converge here, underlie decision. (1) It is prejudicial error to submit to the jury for consideration facts material to the issue of which there is no evidence. Marshburn v. Patterson, 241 N.C. 441, 85 S.E.2d 683; Darden v. Leemaster, 238 N.C. 573, 78 S.E.2d 448; State v. McCoy, 236 N.C. 121, 71 S.E.2d 921; State v. Pillow, 234 N.C. 146, 66 S.E.2d 657; In re Will of Atkinson, 225 N.C. 526, 35 S.E.2d 638; and cases cited therein. (2) Even though stated as a contention, an instruction that presents an erroneous view of the law or an incorrect application of it, if prejudicial, is ground for a new trial, notwithstanding failure to bring the matter to the attention of the trial judge before the case is submitted to the jury. Harris v. White Const. Co., 240 N.C. 556, 82 S.E.2d 689, and cases cited therein.
The evidence and the charge, considered in its entirety, accentuate the prejudicial effect of the error. Defendant's only explanation and contention as to his admitted loss of control of the Ford car was that the left-hand door came open when he leaned against it. In the charge, there is no application or mention of the law bearing on the subject of unavoidable accident. Indeed, the word accident does not appear in the entire charge relating to the first issue except in the challenged (quoted) instruction. Under these circumstances, the instruction, *71 while couched in the language of a review of contentions, implied that if the door flew open, particularly if it had not done so theretofore, of which there was no evidence, this would be "a pure accident" requiring that the jury answer the negligence issue, "No."
Such is not the law. If defendant did not properly shut the door, as he surmised, and such conduct was a failure to exercise due care, or if, under the circumstances, he failed to exercise due care when he leaned against it when he came around the curve, and such failure to exercise due care caused the door to fly open, defendant's loss of control of the Ford car under such circumstances would be attributable to negligence on his part. These questions were not submitted for jury determination.
An unavoidable accident, as understood in the law of torts, can occur only in the absence of causal negligence. Plaintiff is entitled to recover if defendant's loss of control of the Ford car and the resulting damage would not have occurred but for his own negligent act or omission. Ferebee v. Norfolk Southern R. Co., 163 N.C. 351, 79 S.E. 685, 52 L.R.A.,N.S., 1114; Luttrell v. Hardin, 193 N.C. 266, 136 S.E. 726; Gillis v. Transit Corp., 193 N.C. 346, 137 S.E. 153.
It is noted that the errors in the charge go directly to the crux of the case, not to a subordinate or incidental feature thereof.
The circumstances here take this case out of the well-established rule that "an error in stating the contentions of a party, or in recapitulating the evidence, should be called to the court's attention in time to afford an opportunity of correction, otherwise it may be regarded as waived or as a harmless inadvertence." State v. McNair, 226 N.C. 462, 38 S.E.2d 514, 516. See In re Will of McGowan, 235 N.C. 404, 70 S.E.2d 189, and cases cited therein.
For the reasons stated, plaintiff is entitled to a
New trial.