Cook v. Hobbs

*492 Ebvin, I.

The defendants make these assertions by their assignments of error:

1. That the court erred in refusing to dismiss the action upon a com-pulso2’y nonsuit at the close of all the evidence.

2. That the court erred in its instructions to the jury.

The evidence warranted the submission of the issues of actionable negligence and contributory negligence to the jury. In consequence, the refusal to nonsuit was proper.

The cause must be tried anew, however, because of error in the portion of the charge covered by the sixth exception. Although the complaint made no reference whatever to the flashing signals or the city ordinance, the judge instructed the trial jurors, in substance, that it would be their duty to answer the first issue “Yes” in case they found by the greater weight of the evidence that the driver of the Cadillac entered the intersection without first stopping in obedience to a red flashing signal and the city ordinance and in that way proximately caused injury to the plaintiff’s person or damage to his Ford. In so doing, the judge set at naught the fundamental procedural principle that a plaintiff cannot recover except on the cause of action set up in his complaint.

Moore v. Clark, 235 N.C. 364 , 70 S.E. 2d 182 ;

Bowen v. Darden, 233 N.C. 443 , 64 S.E. 2d 285 ;

Maddox v. Brown, 232 N.C. 542 , 61 S.E. 2d 613 ;

King v. Coley, 229 N.C. 258 , 49 S.E. 2d 648 ;

Watson v. Durham, 207 N.C. 624 , 178 S.E. 218 ;

Edwards v. Power Co., 193 N.C. 780 , 138 S.E. 131 , 53 A.L.R. 1404 ;

Geddie v. Williams, 189 N.C. 333 , 127 S.E. 423 ;

Dixon v. Davis, 184 N.C. 207 , 114 S.E. 8 ;

McNeill v. R. R., 167 N.C. 390 , 83 S.E. 704 ;

Wilson v. Holley, 66 N.C. 408 ; 65 C.J.S., Negligence, section 288.

New trial.