Dayton Lamonde BARBER
v.
William Mitchell HEEDEN and Patricia Anne Heeden.
No. 608.
Supreme Court of North Carolina.
November 24, 1965.*888 Emanuel & Emanuel, Raleigh, for plaintiff appellee.
Young, Moore & Henderson, Raleigh, for defendant appellants.
BOBBITT, Justice.
Defendants, in their brief, contend (1) that the evidence was insufficient to warrant submission of an issue as to defendants' alleged actionable negligence, and (2) that plaintiff's evidence discloses contributory negligence as a matter of law, and therefore the court erred in overruling their motion made at the conclusion of all the evidence for judgment of nonsuit. However, careful consideration impels the conclusion that the evidence, when considered in the light most favorable to plaintiff, was sufficient to require submission of these issues for jury determination. Having reached this conclusion, we deem it appropriate to refrain from further discussion of the evidence presently before us. Byrd v. North State Motor Lines, Inc., 263 N.C. 369, 372, 139 S.E.2d 615, and cases cited.
Included in the portion of the charge relating to the first (negligence) issue, the court instructed the jury as follows:
"Members of the jury, I further charge you that if you find from the evidence, and by its greater weight, that on May the 14th, 1963, Miss Heeden was operating the Buick automobile along Rural paved road No. 1319, and that said road intersected with Highway No. 50, and that there is erected on Rural Road 1319 a Stop Sign directing traffic to come to a stop before entering Highway No. 50, and you further find that the defendant, Miss Heeden, never reached Highway No. 50, and that she never entered the westerly lane of travel of Mr. Barber, the plaintiff, and that she turned her automobile off of the rural paved road number 1319 before reaching the western lane of Highway No. 50 and that she turned off and turned onto the apron of Jack Langdon's Service Station without ever having reached the intersection, I charge you that if you so find from the evidence, and by its greater weight, that then, and in that event, Miss Heeden would not be guilty of any negligence whatsoever and you would answer the First Issue No." (Our italics.)
Defendants' assignment of error based on their exception to the quoted excerpt from the charge is well taken. The clear implication of this instruction is that the burden of proof was on defendants to satisfy the jury from the evidence and by its greater weight that the facts are as stated in this instruction. Elsewhere in the *889 charge the court instructed the jury correctly that the burden of proof was on plaintiff to establish by the greater weight of the evidence the alleged actionable negligence of defendants.
These propositions are well settled: "The rule as to the burden of proof constitutes a substantial right, for, upon it, many cases are made to turn, and its erroneous placing is reversible error." Williams v. Pilot Life Insurance Co., 212 N.C. 516, 518, 193 S.E. 728, 730, and cases cited; Owens v. Kelly, 240 N.C. 770, 774, 84 S.E.2d 163, and cases cited. Moreover, as stated by Barnhill, J. (later C. J.), in State v. Overcash, 226 N.C. 632, 39 S.E.2d 810: "When there are conflicting instructions to the jury upon a material point, the one correct and the other incorrect, a new trial must be granted. We may not assume that the jurors possessed such discriminating knowledge of the law as would enable them to disregard the erroneous and to accept the correct statement of the law as their guide. We must assume instead that the jury in coming to a verdict, was influenced by that part of the charge that was incorrect." See Graham v. Atlantic Coast Line R. Co., 240 N.C. 338, 350, 82 S.E.2d 346, and cases cited; and Crow v. Ballard, 263 N.C. 475, 478, 139 S.E.2d 624, and cases cited.
In the portion of the charge relating to the second (contributory negligence) issue, the court, immediately after referring to defendants' contention that the jury should be satisfied from the evidence and by its greater weight "that the plaintiff himself contributed to his own injury by his negligence," instructed the jury as follows:
"She says and contends that on this occasion the defendant was operating his automobile at a high and dangerous rate of speed in a careless and reckless manner. She says and contends that he was traveling at a speed of some seventy to eighty miles an hour.
"The Court charges you that if you find from the evidence and by its greater weight, that the defendant was traveling at a rate of speed of seventy to eighty miles an hour, that such speed would be in excess of that permitted by law at that intersection, and if you find that he was traveling at that rate of speed, that would constitute negligence on his part, and if you further find that such negligence on his part was a proximate cause of the injury and damages that he sustained, then the Court instructs you that you should answer that Second Issue Yes; if you fail to so find, you should answer the Second Issue No." (Our italics.)
In the quoted excerpt, it seems clear the court inadvertently said "defendant" when intending to say "plaintiff." While this inadvertence may have tended to confuse, we assume, for present purposes, that the jury understood the instruction as if "plaintiff" had been used. So considered, the vice in this instruction is that the jury was instructed to answer the second (contributory negligence) issue, "No," if defendants failed to satisfy the jury from the evidence and by its greater weight that the precise facts were as stated in this instruction. This instruction was erroneous and prejudicial to defendants. Excessive speed was only one of defendants' alleged specifications of plaintiff's contributory negligence. Moreover, proof by the greater weight of the evidence that plaintiff was traveling at a speed of 70 to 80 miles an hour was not required to establish that plaintiff was contributorily negligent even in respect of alleged excessive speed. In like manner, the court, in giving separate instructions bearing upon each of defendants' other specifications of the alleged contributory negligence of plaintiff, charged the jury to answer the second (contributory negligence) issue, "No," if defendants failed to satisfy the jury from the evidence and by its greater weight that the precise facts were as stated in the instruction.
Under well established legal principles referred to above, we are constrained to hold that the error in the (second) quoted excerpt and similar instructions was *890 not cured by the fact that conflicting instructions, albeit correct, were given elsewhere in the fifty-page charge.
Since the errors referred to are sufficient to require a new trial, we deem it unnecessary to consider other assignments of error based on exceptions to the charge. Upon retrial, the questions raised by such assignments may not recur.
New trial.