Green ex rel. Griffin v. Bowers
Dallas Ray Green, by His Next Friend, Clarence W. Griffin v. Roy Bowers.
Opinion of the Court
DeviN, J.
Tbe court properly ruled that the plaintiff was not of sufficient age nor possessed of that degree of intelligence which would make him chargeable with contributory negligence, but, in response to request from defendant, charged the jury that “If they found from the evidence that as the defendant was passing the car in which plaintiff had been riding, the plaintiff jumped from the car and into defendant’s truck, and that this action on the part of plaintiff was the sole proximate cause of his injury, they should answer the first issue no.” To this the court added, “I give you this instruction at the request of the defendant, charging you that you would have to find that there was no negligence on the part of the defendant in passing the car, either in the way or manner in which he operated his truck, or in the failure to give signals as he approached the ear, or his failure to keep a proper lookout — if you find from the testimony and by its greater weight, the burden being upon the plaintiff to so satisfy you, that he did so.”
The effect of this instruction was to convey to the minds of the jurors that they could not answer the first issue no unless they found that defendant was in no respect negligent, thus omitting the element of proximate cause. Notwithstanding the defendant may have failed to exercise due'care in the manner in which he drove his truck, or may have failed to give a signal, if his negligence was not the proximate cause of the injury, he could not in law be held liable therefor, and he was entitled to have the jury so instructed.
True, the trial judge subsequently stated the rule correctly, but we think his modification of, or addition to, the defendant’s prayer, in the way in which it was stated, was confusing to the jury and harmful to the defendant. Nor was the error cured by the later statement. “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.”
S. v. Overcash, 226 N.C. 632 , 39 S.E. 2d 810 ;
Dixon v. Brockwell, 227 N.C. 567 (571), 42 S.E. 2d 680 ;
Templeton v. Kelley, 217 N.C. 164 (166), 7 S.E. 2d 380 .
New trial.
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