Earon E. GRIFFIN
v.
LeRoy Thomas WATKINS and Dickerson, Incorporated.
No. 526.
Supreme Court of North Carolina.
March 22, 1967.*358 Smith, & Griffin, Monroe, and Wardlow, Knox, Caudle & Wade, Charlotte, for plaintiff.
Walter B. Nivens and Kennedy, Covington, Lobdell & Hickman by Charles V. Tompkins, Jr., Charlotte, for defendants.
SHARP, Justice.
In specifiying the acts of omission and commission which they contend constituted negligence and contributory negligence on the part of plaintiff, defendants allege that he failed to operate his automobile at a speed which would permit him to stop within the range of his headlights. With reference to the second issue, they assign as error violative of G.S. § 1-180 the judge's failure to charge the jury in words substantially to this effect: If the jury should be satisfied by the greater weight of the evidence that, at the time of the accident, the hour or visibility was such that it became mandatory under G.S. § 20-129 for every vehicle upon the highway to have its headlights burning and if they should be satisfied that plaintiff was operating his vehicle at a speed in excess of 55 MPH (the maximum speed permitted by law for that area), then plaintiff's failure or inability to stop his automobile within the radius of his headlights or range of his vision would constitute negligence (or contributory negligence) per se. And, if they further found that such failure to stop was a proximate cause of the collision, they should answer the second issue YES.
Prior to April 29, 1953, the effective date of Section 3 of Chapter 1145 of the 1953 Session Laws, now codified as G.S. § 20-141 (e), the failure of a nocturnal motorist to drive in such a manner and at such a speed that he could stop his vehicle within the radius of his headlights or range of his vision was negligence, or contributory negligence, per se. G.S. § 20-141 *359 (e) modified this rule with the following proviso:
"(T)he failure or inability of a motor vehicle operator who is operating such vehicle within the maximum speed limits prescribed by G.S. 20-141 (b) to stop such vehicle within the radius of the lights thereof or within the range of his vision shall not be considered negligence per se or contributory negligence per se in any civil action, but the facts relating thereto may be considered with other facts in such action in determining the negligence or contributory negligence of such operator." (Emphasis added.)
This provision by its terms does not apply, however, when a motorist is operating his vehicle in excess of the maximum speed limits fixed by G.S. § 20-141 (b). Rudd v. Stewart, 255 N.C. 90, 120 S.E.2d 601; Burchette v. Davis Distributing Co., 243 N.C. 120, 90 S.E.2d 232; 35 N.C.L.Rev. 247 (1957). See Sharpe v. Hanline, 265 N.C. 502, 144 S.E.2d 574; Brown v. Hale, 263 N.C. 176, 139 S.E.2d 210; Short v. Chapman, 261 N.C. 674, 136 S.E.2d 40.
Plaintiff's own evidence tended to show that headlights were required by G.S. § 20-129 at the time of the collision, and a witness for defendants testified that plaintiff was traveling at 60-65 MPH just prior to the accidenta speed 5-10 MPH in excess of the legal limit. Plaintiff testified that although the lights of the truck he was meeting bothered him, he did not slow down until he saw the tractor. Under their pleadings and evidence, defendants were entitled to the substance of the instruction, the omission of which they have assigned as error. "It is the duty of the court to charge the law applicable to the substantive features of the case arising on the evidence without special request and to apply the law to the various factual situations presented by the conflicting evidence." 4 Strong, N.C.Index, Trial § 33 (1961).
Defendants also assigned as error the following portion of his Honor's instruction to the jury:
"(I)f plaintiff has satisfied you from the evidence and by its greater weight that the defendants were negligent in any one or more of the following respects, i. e.: that they failed to exercise due care; that they failed to have the lights on as provided by statute if it was thirty minutes after sunset or the visibility was less than two hundred feet; or (that) they parked on the highway when it was practical or reasonably practical to park off the highway as provided by section 20-161 of the General Statutes; and * * * (that) the negligence in any one or more of those respects was a proximate cause of the collision and the injury and damage resulting to the plaintiff, then it would be your duty to answer the first issue YES in favor of the plaintiff." (Emphasis added.)
Failure to exercise due care is the failure to perform some specific duty required by law. To say that one has failed to use due care or that one has been negligent, without more, is to state a mere unsupported conclusion. "(N)egligence is not a fact in itself, but is the legal result of certain facts." Shives v. Sample, 238 N.C. 724, 726, 79 S.E.2d 193, 195. In his charge, the trial judge must tell the jury what specific acts or omissions, under the pleadings and evidence, constitute negligence, that is, the failure to use due care. Defendants justly complain that this instruction gave the jury carte blanche to find them generally careless or negligent for any reason which the evidence might suggest to them.
For the errors indicated, there must be a new trial. We do not consider defendants' other assignments of error; the questions presented may not arise in the next trial.
New Trial.
*360 PARKER, Chief Justice (concurring in part and dissenting in part).
I agree with the majority opinion that the defendants are entitled to a new trial for failure of the court in its charge to apply the provisions of G.S. § 20-141 (e) to defendants' evidence tending to show that plaintiff was guilty of contributory negligence, as set forth in the second issue. I do not agree with this statement in the majority opinion: "To say that one has failed to use due care * * * is to state a mere unsupported conclusion," and that "[d]efendants justly complain that this instruction gave the jury carte blanche to find them generally careless or negligent for any reason which the evidence might suggest to them."
Sir A. P. Herbert wittily and happily said in the Uncommon Law, p. 1: "The Common Law of England has been laboriously built about a mythical figurethe figure of `The Reasonable Man.'" To this may be added: The law of negligence has been laboriously built about the figure of "The Reasonable Man's" failure to use due care. "Due care" is a duty lying at the root of the social compact. In the dawn of the history of the human race, the Lord said unto Cain: "Where is Abel thy brother? And he said, I know not: Am I my brother's keeper?" Genesis, Ch. 4, v. 9 (King James Version). An old, old question but yet new with all. Whatever doubt may have arisen in the mind of the unhappy man who first asked it, no doubt exists in the law on the right answer, then and now. The law hedges around the lives and persons of men with much more care than it employs when guarding their property, so that, in this particular, it makes, in a way, everyone his brother's keeper. Negligence is the failure to exercise that degree of care for others' safety which a reasonably prudent man, under like circumstances, would exercise. It has also been defined as the failure to exercise proper care in the performance of some legal duty which defendant owes the injured party under the circumstances in which they are placed. Of course, failure to exercise due care for another's safety to be actionable must be the proximate cause of injury, and foreseeability is an element of proximate cause. 3 Strong's N.C.Index, Negligence, § 1.
Winborne, J., in Hawes v. Atlantic Refining Co., 236 N.C. 643, 74 S.E.2d 17, said: "And it is a general rule of law, even in the absence of statutory requirement, that the operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances."
Bobbitt, J., said in Henderson v. Henderson, 239 N.C. 487, 80 S.E.2d 383: "Apart from safety statutes prescribing specific rules governing the operation of motor vehicles, a person operating a motor vehicle must exercise proper care in the way and manner of its operation, proper care being that degree of care that an ordinarily prudent person would exercise under the same or similar circumstances and when charged with like duty. Thus, he must exercise due care as to keeping a proper lookout, as to keeping his car under proper control, and generally so as to avoid collision with persons or other vehicles on the highway."
"It may be assumed that the jury will understand that a want of `due care,' `ordinary care,' or `reasonable care' given in special charges is equal to negligence, and if the plaintiff deems such charges misleading, he should request an explanatory charge." 38 Am.Jur., Negligence, § 364, p. 1078. In my opinion, the failure to use due care is not a mere unsupported conclusion, but is a fact and is generally used and understood as such in the language of the ordinary man, although speaking most technically it may be considered by some as a mere conclusion.