Lester C. SUGG, Administrator of John Wayne Sugg, deceased,
v.
James H. BAKER, Sr.
No. 319.
Supreme Court of North Carolina.
December 12, 1962.*596 Jones, Reed & Griffin, Kinston, for plaintiff.
Whitaker & Jeffress, Kinston, for defendant.
MOORE, Justice.
Instructing the jury, the court stated:
"* * * (O)rdinarily in a case of this kind the Court would recapitulate and summarize the substance of the evidence. That is done unless the doing of that is waived by both of the parties. In this case the parties, through their counsel respectively have waived the Court recapitulating or summarizing the evidence."
The charge is entirely devoid of any summary of the evidence. There is no attempt to apply the law to the facts. The few contentions given are extremely general and conclusional and do not in any sense review the crucial facts. The final instruction on the first issue is:
"* * * (I)f you find from the evidence and by its greater weight that the death of plaintiff's intestate was proximately caused by the negligence of the defendant as alleged in the complaint, applying these rules of law to the facts in the case, then it would be your duty to answer this issue `Yes.' If you fail to so find, then it would be your duty to answer it `No.'"
*597 The charge does not comply with the requirements of G.S. § 1-180. The court places upon the jury the duty which the statute imposes upon the judge, that is, to apply the law to the crucial facts in the case. The charge is for the guidance of the jury, not for the benefit of counsel. Even though the parties waive a recapitulation of the evidence, such waiver does not relieve the court of the duty to declare and explain the law arising on the evidence of the respective parties. It is not sufficient for the court to read a statute or to state the applicable law bearing on an issue in controversy, and leave the jury unaided to apply the law to the facts. Bulluck v. Long, 256 N.C. 577, 124 S.E.2d 716; Brannon v. Ellis, 240 N.C. 81, 81 S.E.2d 196. "The court is not required to recapitulate the evidence, witness by witness. Nor is it required to instruct on subordinate features of the case without a proper request therefor. A summary of the material aspects of the evidence sufficient to bring into focus controlling legal principles is all that is required with respect to stating the evidence." General Tire & Rubber Co. v. Distributors, Inc., 256 N.C. 561, 564, 124 S.E.2d 508, 510.
A further error in the charge graphically illustrates the importance and necessity of complying with the requirements of G.S. § 1-180. The judge instructed the jury:
"The plaintiff contends that his intestate's death was proximately caused by the negligence of the defendant in that he failed to keep a proper lookout. There were other allegations of negligence in the complaint but it resolves itself to this allegation of negligence, and that is what is generally spoken of as careless and reckless driving, of which failure to keep a proper lookout could be considered, and is contended to be a part.
* * * * * *
"The plaintiff contends further, and in furtherance of that contention with respect to failure to keep a proper lookout that the defendant was driving his automobile in a manner that is commonly referred to as carelessly and recklessly, the statute pertaining to which I specifically call your attention, the plaintiff contending that the defendant drove his motor vehicle in violation of this statute in that he failed to keep the proper lookout that the law requires of a motorist along the highway."
The judge then read to the jury G.S. § 20-140.
Failure to keep a proper lookout may be, but is not necessarily, a component of reckless driving. From the instructions given the jury could have, and probably did, conclude that they could not find that defendant was negligent, under the rule of the ordinarily prudent man, in failing to keep a reasonable lookout, unless they also found that he was guilty of reckless driving as defined by the statute. The evidence on this record is insufficient to support a finding of reckless driving. The judge below probably had in mind the statement in Kolman v. Silbert, 219 N.C. 134, 137, 12 S.E.2d 915, 917, that the reckless driving and speed control statutes "constitute the hub of the Motor Traffic Law around which all other provisions regulating the operation of automobiles revolve." This expression is true as a general proposition and as applied in the Kolman case, in which there was abundant evidence of excessive speed and reckless operation. But it does not mean that the violation of any other common law or statutory rule or duty with respect to the operation of automobiles constitutes reckless driving, nor that damage arising from any such violation is not actionable unless it amounts to reckless driving. The court is not justified in giving instructions with respect to a principle of law, not applicable to the evidence, merely because a breach of such law has been pleaded. Before a *598 breach of a particular law or duty may be submitted for jury determination, there must be both allegation and proof of such breach. One of the most important purposes of the charge is the elimination of irrelevant matters and causes of action or allegations as to which no evidence has been offered, and to thereby let the jury understand and appreciate the precise facts that are material and determinative. Dunlap v. Lee, 257 N.C. 447, 450, 126 S.E. 2d 62.
New trial.