Defendant contends that the trial court expressed an opinion on the evidence relating to damages, thus violating G.S. 1A-1, Rule 51. We agree.
In Bowen v. Rental Co., 283 N.C. 395, 418, 196 S.E. 2d 789 (1973), former Chief Justice Bobbitt noted that under G.S. 28-174 (a) (6), “[njominal damages and costs may now be recovered if the jury finds that the decedent’s death was caused by the defendant’s wrongful act but fails to find that such death caused pecuniary loss.” (Emphasis supplied.) Here, the trial court instructed the jury: “[t]he plaintiff has introduced evidence of damages which are more than nominal, and if you believe the evidence, in whole or in part, it would be your duty to award . . . more than nominal damages. . . .” While it is true that plaintiff’s evidence could be said to be sufficient to support a verdict for more than nominal damages, it is not sufficient to compel such a verdict. The instruction precluded the jury’s consideration of nominal damages, and constituted prejudicial error entitling defendant to a new trial on the issue of damages.
Defendant argues that the trial court gave an incomplete instruction with respect to the doctrine of res ipsa loquitur. He does not contend that the doctrine is inapplicable to the facts of this case. While we question the propriety of instructing on the doctrine in this case, we are of the opinion that the court’s instructions were adequate and did not, as defendant contends, leave the jury with the erroneous impression that the circumstantial evidence of driver negligence furnished by the doctrine of res ipsa loquitur compelled a finding of actionable negligence.
We have reviewed defendant’s other assignments of error and find them to be without merit. Defendant is entitled to a new trial on the issue of damages only.
New trial on issue of damages.
Judges Vaughn and Clark concur.