{ "id": 8552816, "name": "WILLIAM BENJAMIN STRICKLAND, JR., By His Next Friend, ROLAND L. STRICKLAND v. WILLARD POWELL; - and - WILLIAM BENJAMIN STRICKLAND v. WILLARD POWELL", "name_abbreviation": "Strickland ex rel. Strickland v. Powell", "decision_date": "1970-12-30", "docket_number": "No. 706DC455", "first_page": "225", "last_page": "230", "citations": [ { "type": "official", "cite": "10 N.C. App. 225" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "109 S.E. 564", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1921, "opinion_index": 0 }, { "cite": "182 N.C. 536", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656667 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/nc/182/0536-01" ] } ], "analysis": { "cardinality": 532, "char_count": 11854, "ocr_confidence": 0.491, "pagerank": { "raw": 2.967678173622355e-07, "percentile": 0.8500725331862977 }, "sha256": "9236809fd794e814df37cf845c4e7abe8db9756b19e7e896d935fba51d5c7dc6", "simhash": "1:b4e58db74506d66d", "word_count": 2028 }, "last_updated": "2023-07-14T19:51:53.441044+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Brock and Vaughn concur." ], "parties": [ "WILLIAM BENJAMIN STRICKLAND, JR., By His Next Friend, ROLAND L. STRICKLAND v. WILLARD POWELL \u2014 and \u2014 WILLIAM BENJAMIN STRICKLAND v. WILLARD POWELL" ], "opinions": [ { "text": "MORRIS, Judge.\nPlaintiffs\u2019 evidence is summarized as follows: William Benjamin Strickland, his minor son, and some others had been to the Strickland cabin at Roanoke Rapids Lake. They left earlier than planned because of the imminence of a storm. Strickland, Sr., was driving the lead car, followed by A. R. Robinson. The minor plaintiff was a passenger in his father\u2019s car. It started to sprinkle as they left the cabin. About a mile from the lake, Strickland, Sr., turned on his windshield wipers. N. C. Highway 46 is about two miles from the cabin. When he reached Highway 46, he turned right and headed east toward Gaston. It was then raining \u201ca good downpour.\u201d The speed limit in that area was 55 miles per hour. At the time he started toward Roanoke Rapids on Highway 46, he was driving approximately 35 to 40 miles per hour and had his parking lights on. As he approached Squire School which is located on a hill, he observed a car about 75 yards ahead of him over the crest of the hill. At that time he was traveling at approximately 30 miles per hour. The car was in the highway with no lights on. About half the distance between him and the car \u2014 between 35 and 40 yards \u2014 he realized the car was not moving. He saw someone jump from the embankment of the road onto the shoulder of the road \u201cas to enter the car\u201d and realized the car was \u201cat a dead stop.\u201d He immediately applied his brakes, skidded approximately two or three car lengths, and struck the rear of the car. Approaching in the left lane at the time he applied brakes was a vehicle pulling a trailer. Mr. Robinson testified that at the time Mr. Strickland went over the hill, he was probably ten car lengths behind him and driving 35 or 40 miles per hour. As he came over the crest of the hill all he saw in the right lane of travel was Mr. Strickland\u2019s car until he applied his brakes and his brake lights came on. When his brake lights came on, Robinson realized something was in the road in front of Strickland and he started trying to stop. His car started skidding but he was able to get his right wheels on the shoulder of the road and was able to stop within three to five feet of Strickland\u2019s car.\nThe investigating officer testified that the composition of the road was black top. \u201cAt the point that I found these vehicles when I arrived, the highway is downgraded as you go from west to east with the lower end on the east end. If you are going down the grade as you go from west to east, it*s more than gradual. I hesitate to say it\u2019s steep but it\u2019s a pretty good drop.\u201d There were five signs on each shoulder in this particular area indicating no parking at any time. The wording on those signs was \u201cNo Parking at Any Time.\u201d The officer arrived at the scene 19 minutes after the collision occurred. At that time it was raining and it was dark, \u201cnot completely dark but dusky dark, dark enough to have lights on your vehicle.\u201d Glass and debris were found in the eastbound lane about 100 feet east of the hillcrest.\nDefendant chose not to put on any evidence.\nIn our opinion, the trial court properly submitted the case to the jury on the issue of defendant\u2019s negligence in the minor plaintiff\u2019s case and William B. Strickland\u2019s case and on the issue of contributory negligence in Strickland, Sr.\u2019s case.\nThe jury was given five issues:\n\u201c1. Was the minor plaintiff, William Benjamin Strickland, Jr., injured and damaged as a result of the negligence of the defendant as alleged in his complaint?\u201d\n\u201c2. What amount, if any, is the minor plaintiff, William Benjamin Strickland, Jr., entitled to recover from the defendant for his personal injuries?\u201d\n\u201c3. Was the plaintiff, William Benjamin Strickland, damaged as a result of the negligence of the defendant as alleged in his complaint?\u201d\n\u201c4. If so, did the plaintiff, William Benjamin Strickland, by his own negligence contribute to his damages as1 alleged in the answer ?\u201d\n\u201c5. What amount, if any, is the plaintiff, William Benjamin Strickland, entitled to recover from the defendant:\nA. For medical expenses incurred by his minor son?\nB. For property damage?\u201d\nThey answered the first and third issues \u201cNo.\u201d\nPlaintiffs\u2019 first assignment of error is that the court committed prejudicial error in the charge to the jury because he failed to instruct with respect to the provisions of G.S. 20-154 (a) that the driver of a vehicle upon a highway has the legal duty before stopping to \u201cfirst see that such movement can be made in safety.\u201d\nEach complaint alleges that the defendant was negligent \u201cin that in violation of G.S. 20-154(a), defendant stopped his automobile upon N. C. Highway No. 46 as above set out without first seeing that such movement could be made in safety.\u201d G.S. 20-154(a) reads as follows:\n\u201cThe driver of any vehicle upon a highway before starting, stopping or turning from a direct line shall first see that such movement can be made in safety, and if any pedestrian may be affected by such movement shall give a clearly audible signal by sounding the horn, and whenever the operation of any other vehicle may be affected by such movement, shall give a signal as required in this section, plainly visible to the driver of such other vehicle, of the intention to make such movement.\u201d\nPlaintiffs do not contend that defendant was guilty of violating G.S. 20-161 (stopping on highway), and concede that the mere fact that a driver stops his vehicle on the traveled portion of a highway for the purpose of receiving or discharging a passenger, nothing else appearing, does not constitute negligence. Their contention is that G.S. 20-154 (a) is applicable to the facts, here and the jury was misled by the charge of the court.\nConceding arguendo that the statute is applicable, we are of the opinion that the charge, read contextually, did not confuse or mislead the jury as to the negligence of defendant in the case of Strickland, Sr. The first assignment of error is, therefore, overruled.\nBy the second assignment of error, the minor plaintiff contends that the trial court committed prejudicial error in failing adequately to instruct the jury that there can be more than one proximate cause of an injury and that, in order to hold defendant liable to plaintiff, it is sufficient if his negligence was one of the proximate causes. We are of the opinion that this assignment of error is well taken. In the charge on the first issue, the court, with only one exception, instructed that in order to recover, plaintiff must satisfy the jury that defendant\u2019s negligence was the proximate cause of his injuries. It is true that after having so charged several times, the court charged that if the plaintiff \u201chas further proven it by the greater weight of the evidence the negligence of the defendant in this regard not only exists but that the defendant\u2019s negligence was the proximate cause of the collision between the vehicles, that it was the cause or one of the causes without which the collision would never have occurred, resulting in and causing damage to plaintiff\u2019s automobile or injury to plaintiff\u2019s person, or both such damage and injury, then it would be your duty to answer the first issue, Yes.\u201d We cannot say that this one reference to the fact that there can be more than one proximate cause of an injury, clearly informed the jury that the possible negligence on the part of the driver of the car in which the minor plaintiff was a passenger would not shield defendant from liability if his negligence was also one of the proximate causes of the minor plaintiff\u2019s injury. White v. Realty Co., 182 N.C. 536, 109 S.E. 564 (1921). This is particularly true in view of the previous language of the court in several instances in requiring that defendant\u2019s negligence be the proximate cause of plaintiff\u2019s injury.\nThe error in the charge set out above is equally applicable to the plaintiff William Benjamin Strickland\u2019s case. Additionally, the court instructed the jury \u201cif you answer the first issue No, then the court instructs you that as a matter of law, you will answer the third issue No.\u201d In answering the first issue \u201cNo,\u201d the jury could conceivably have based its answer upon a finding that the plaintiff was not damaged or upon a finding that defendant was not negligent. Since the issue as framed, gave the jury an alternative upon which to base its answer as to the first issue, they should not have been bound by that answer in answering the third issue. The court should have given them separate instructions as to the third issue.\nAs to appeal of William Benjamin Strickland \u2014 new trial.\nAs to appeal of William Benjamin Strickland, Jr., by his next friend, Roland L. Strickland \u2014 new trial.\nJudges Brock and Vaughn concur.", "type": "majority", "author": "MORRIS, Judge." } ], "attorneys": [ "Allsbrook, Benton, Knott, Allsbrook and Cranford, by Richard B. Allsbrook, for plaintiff appellants.", "Charlie D. Clark, Jr., for defendant appellee." ], "corrections": "", "head_matter": "WILLIAM BENJAMIN STRICKLAND, JR., By His Next Friend, ROLAND L. STRICKLAND v. WILLARD POWELL \u2014 and \u2014 WILLIAM BENJAMIN STRICKLAND v. WILLARD POWELL\nNo. 706DC455\n(Filed 30 December 1970)\n1. Automobiles \u00a7\u00a7 56, 76\u2014 actions by driver and passenger against second driver \u2014 negligence and contributory negligence \u2014 issues submitted\nIn actions by the driver and a minor passenger of an automobile which struck defendant\u2019s automobile while it was stopped in the road during a rainstorm, the trial court properly submitted issues of defendant\u2019s negligence in both actions and the issue of contributory negligence in plaintiff driver\u2019s action.\n2. Automobiles \u00a7 90\u2014 striking car stopped on highway \u2014 alleged violation of G.S. 20-154 (a) \u2014 instructions\nIn an action by the driver of an automobile which struck defendant\u2019s automobile while it was stopped on the highway during a rainstorm, the charge of the court, when read contextually, did not confuse or mislead the jury as to the alleged negligence of defendant in stopping on the highway without first seeing that such movement could be made in safety in violation of G.S. 20-154(a).\n3. Automobiles \u00a7\u00a7 90, 93\u2014 collision between two automobiles \u2014 passenger\u2019s action against one driver \u2014 proximate cause \u2014 instructions\nIn an action for injuries sustained by minor plaintiff while riding as a passenger in an automobile which struck defendant\u2019s automobile, the trial court erred in failing clearly to inform the jury that possible negligence on the part of the driver of the automobile in which the minor plaintiff was a passenger would not shield defendant from liability if his negligence was one of the proximate causes of plaintiff\u2019s injuries.\n4. Automobiles \u00a7 91\u2014 actions by driver and passenger against second driver\u2014 negligence of second driver \u2014 issues\nIn actions by the driver and a minor passenger of an automobile which struck defendant\u2019s stopped automobile, the trial court erred in instructing the jury that if it answered negatively the first issue as to whether minor plaintiff was injured and damaged as a result of the negligence of defendant, it was required as a matter of law to answer negatively the third issue as to whether plaintiff driver was damaged by the negligence of defendant, since the jury could have based its negative answer to the first issue either upon a finding that plaintiff passenger was not damaged or upon a finding that defendant was not negligent.\nAppeal by plaintiffs from Gay, District Court Judge, 9 February 1970 Session Halifax County District Court.\nThese two actions', brought for the recovery of damages as a result of an automobile collision on 20 August 1966, were, by consent of all parties, consolidated for trial. Defendant\u2019s motions for directed verdict were overruled, and the jury answered the issue of defendant\u2019s negligence against the plaintiffs. Plaintiffs appealed, assigning as1 error certain portions of the court\u2019s charge to the jury. Facts necessary and pertinent to decision are set out in the opinion.\nAllsbrook, Benton, Knott, Allsbrook and Cranford, by Richard B. Allsbrook, for plaintiff appellants.\nCharlie D. Clark, Jr., for defendant appellee." }, "file_name": "0225-01", "first_page_order": 249, "last_page_order": 254 }