DeVere C. LENTZ, Jr., Administrator of the Estate of Thad Clayton Roberts, Jr.
v.
Roy B. GARDIN, Administrator of the Estate of Lorene Lillard Roberts.
No. 71.
Supreme Court of North Carolina.
March 7, 1978.*510 Lentz & Ball, P. A. by Ervin L. Ball, Jr., Asheville, for plaintiff-appellee.
Morris, Golding, Blue & Phillips by William C. Morris, Jr., Asheville, for defendant-appellant.
SHARP, Chief Justice.
We allowed defendant's petition for discretionary review of the Court of Appeals' decision that defendant was entitled to a new trial only on the issue of damages. In his new brief filed in this Court, plaintiff presented for review pursuant to N.C. App.R. 16(a), the correctness of the order of the Court of Appeals awarding defendant a new trial on the issue of damages.
Of defendant's assignments of error we consider only those challenging the correctness of the trial court's charge on the doctrine of res ipsa loquitur.
Plaintiff relies upon this doctrine to prove his allegations that Mr. Roberts' death was proximately caused by the negligent manner in which Mrs. Roberts operated the motor vehicle at the time it left the highway. With reference to the first issue, inter alia, the court correctly charged:
". . . we have another principle of law applicable in this kind of case called the doctrine of Res ipsa loquitur, which simply means that the nature of the occurrence itself furnishes circumstantial evidence of defendant's intestate's negligence in operating *511 the automobile. In this case defendant's intestate was driving the automobile which left the highway on a slight curve. It is unusual for an automobile to leave the highway. When it does so without apparent cause and inflicts death, an inference is raised that defendant's intestate, the driver, was negligent. . . . "
Following the portion of the charge quoted above, the trial court gave various contentions for both parties on the first issue and then charged the jury on the issues of contributory negligence and damages.
The record shows that before the judge closed his charge he invited counsel to the bench and asked if there were any comments either would like to make out of the hearing of the jury. Counsel for defendant, apprehensive that the jury would not understand the legal import of the word inference as used in the court's explanation of the doctrine of res ipsa loquitur, requested the court to charge the jury that "while the doctrine of res ipsa loquitur created an inference of negligence which would allow the case to go to the jury, the doctrine and inference did not require the jury to find negligence on the part of the defendant's intestate."
Instead of giving the requested instruction the court responded by charging: "Now members of the jury, on the first issue where I charged you with reference to the doctrine of Res ipsa Loquitur, which simply means that the nature of the occurrence itself furnishes circumstantial evidence of the defendant's intestate's negligence, I further instruct you that this is an inference only, and it is for you to decide as to whether this inference is actionable negligence; that is, is it negligence that was a proximate cause of the death and making the driver's estate liable. It is an inference which brings the issue to the jury for your decision." (Emphasis added.) (This instruction constituted defendant's assignment of error No. 33.)
Counsel for defendant then approached the bench and, out of the hearing of the jury, again requested the court to instruct the jury that while the doctrine of res ipsa loquitur raised an inference of negligence, it was an inference only, and did not compel a finding of negligence on the part of the defendant. The court did not give this instruction, but directed the court reporter to insert the request in the record. The court's failure to give the requested instruction is the basis of defendant's assignment of error No. 34.
Since nowhere in his charge did the judge explain to the jury that it was free to accept or reject the inference of negligence which arises when a motor vehicle leaves the highway for no apparent cause, defendant argues that the addendum quoted above was tantamount to an instruction that the inference conclusively established Mrs. Roberts' negligence, and that the only issue for the jury was whether that negligence was the proximate cause of Mr. Roberts' death. This instruction, defendant contends, not only failed to state the proposition of law which his counsel had properly requested, but it misstated the law applicable to this case.
Defendant's contention is meritorious. Actionable negligence is a want of due care which proximately results in injury to another. State v. McLean, 234 N.C. 283, 285, 67 S.E.2d 75, 77 (1951). Absent the requested instruction, the judge's final charge on res ipsa loquitur was subject to the interpretation that the inference of negligence was binding on the jury and that only the second element of actionable negligence, proximate cause, remained for their consideration. This, of course, is not the law. If the jury concluded that the inference of Mrs. Roberts' negligence was binding on them their verdict was foreclosed, as her negligence was at least a proximate cause of Mr. Roberts' death. That jurors could be easily confused about the effect of the inferences created by the doctrine of res ipsa loquitur is not to be doubted. After all, confusion on this point long dwelled in the minds of learned appellate court judges. See White v. Hines, 182 N.C. 275, 109 S.E. 31 (1921); 48 N.C.L.Rev. 452, infra.
*512 The instruction which defendant requested is in accordance with the law of this State and the court should have given it. The well-established rule is succinctly stated by Byrd in his article, Proof of Negligence in North Carolina, 48 N.C.L.Rev. 452, 480-81 (1970):
"Proof establishing a res ipsa fact situation is sufficient to take the case to the jury. Such proof creates a permissible inference of negligence that the jury is free to accept or reject, and an instruction that leaves the impression that the jury may find for plaintiff upon such proof without finding defendant was negligent is erroneous. The plaintiff is entitled to recover only if he convinces the jury by a preponderance of the evidence that his injuries were caused by defendant's negligence."
"The rule [res ipsa] permits the jury, but not the court, to draw an inference of negligence. In other words, it is a circumstance from which the jury may, but is not compelled to, infer a want of due care." Etheridge v. Etheridge, 222 N.C. 616, 619, 24 S.E.2d 477, 480 (1943). Accord, Greene v. Nichols, 274 N.C. 18, 161 S.E.2d 521 (1968); Young v. Anchor Co., 239 N.C. 288, 79 S.E.2d 785 (1953); Ridge v. R. R., 167 N.C. 510, 83 S.E. 762 (1914); Stewart v. Carpet Co., 138 N.C. 60, 50 S.E. 562 (1905). See 2 Stansbury's N.C. Evidence § 227 (Brandis rev. 1973); Prosser, Law on Torts § 40 (3rd ed. 1964).
Since we hold that the instructions on negligence contained prejudicial error requiring a trial de novo, it is unnecessary to discuss the questions of nominal damages and the propriety of a new trial on the issue of damages alone. However, upon review, we conclude that the Court of Appeals was correct in holding that the trial judge erred in his charge on damages. As to the practice of awarding a new trial on the issue of damages alone, see Jarrett v. Trunk Co., 144 N.C. 299, 302, 56 S.E. 937, 938 (1907).
Error and Remanded.