{
  "id": 8553815,
  "name": "KEITH DARREN HORNE, A Minor Appearing By His Guardian Ad Litem, Keith C. Horne, and Keith C. Horne, Individually v. JAMES ROBERT WALL and TEXTILEASE CORPORATION",
  "name_abbreviation": "Horne ex rel. Horne v. Wall",
  "decision_date": "1975-11-05",
  "docket_number": "No. 758SC503",
  "first_page": "373",
  "last_page": "376",
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  "last_updated": "2023-07-14T22:44:36.927205+00:00",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Morris and Hedrick concur."
    ],
    "parties": [
      "KEITH DARREN HORNE, A Minor Appearing By His Guardian Ad Litem, Keith C. Horne, and Keith C. Horne, Individually v. JAMES ROBERT WALL and TEXTILEASE CORPORATION"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\n\u25a0 Plaintiffs allege that the trial judge erred in his instructions to the jury by failing to relate and apply the law to the plaintiffs\u2019 factual contentions. G.S. 1A-1, Rule 51 requires that the trial judge summarize the material aspects of the evidence sufficient to bring into focus the controlling legal principles. Clay v. Garner, 16 N.C. App. 510, 192 S.E. 2d 672 (1972).\n\u201cRule 51 requires th,e trial judge to perform two positive acts: (1) to declare and explain the law arising on the evidence presented in the case; and (2) to review such evidence to the extent necessary to explain the application of that law to the particular facts and circumstances of the case.\u201d Bodenheimer v. Bodenheimer, 17 N.C. App. 434, 435, 194 S.E. 2d 375 (1973).\nRule 51 confers a substantial legal right, not dependent on a request for special instructions, and failure to charge on the material features of the case is prejudicial error. Investment, Properties v. Norburn, 281 N.C. 191, 188 S.E. 2d 342 (1972); Clay v. Garner, supra.\nIn the instant case, plaintiffs presented evidence attempting to establish that defendant was 349 feet away from the plaintiff at the time of plaintiff\u2019s first fall. This would mean that defendant drove over 100 yards toward plaintiff while plaintiff was struggling on the ice attempting to get out of the way. The distance between plaintiff and defendant, at the time defendant became aware of the dangerous situation, was critical to plaintiffs\u2019 effort in establishing defendant\u2019s duty of care. It was error for the trial judge not to mention this critical factual situation and relate the applicable principle of law in his charge to the jury.\nPlaintiffs, in their next assignment of error, allege that the trial judge erred by making factual statements in his charge which were not in evidence and were material to the issue of negligence. The trial judge repeatedly stated that the plaintiff was trying to \u201cbeat the truck to his driveway.\u201d The statement implies that the plaintiff was racing the truck to his driveway. The implication existed in spite of the fact that the trial judge corrected himself when he said that the plaintiff was racing. [\u201cI keep using the word race which I should not use.\u201d] Defendant presented no evidence tending to establish that the plaintiff was \u201ctrying to beat the truck to his driveway.\u201d It was prejudicial error for the court to submit for the consideration of the jury facts material to the issue which are not supported by evidence. Dove v. Cain, 267 N.C. 645, 148 S.E. 2d 611 (1966) ; Curlee v. Scales, 223 N.C. 788, 28 S.E. 2d 576 (1944).\nSince plaintiffs are entitled to a new trial we see no reason to discuss the remaining assignments of error. .\nNew trial.\nJudges Morris and Hedrick concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "Dees, Dees, Smith, Powell and Jarrett, by William W. Smith, for plaintiff appellant.",
      "Smith, Anderson, Blount and Mitchell, by James D. Blount, Jr., for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "KEITH DARREN HORNE, A Minor Appearing By His Guardian Ad Litem, Keith C. Horne, and Keith C. Horne, Individually v. JAMES ROBERT WALL and TEXTILEASE CORPORATION\nNo. 758SC503\n(Filed 5 November 1975)\n1. Automobiles \u00a7 90\u2014 failure to state material evidence and explain law arising thereon\nIn an action to recover for injuries sustained by minor plaintiff when he fell onto the road while riding his bicycle and was struck by defendant\u2019s truck, the trial court erred in failing to relate to the jury plaintiff\u2019s evidence that defendant\u2019s truck was 349 feet away when plaintiff first fell onto the road and to declare and explain the law arising on such evidence.\n2. Automobiles \u00a7 90\u2014 instructions \u2014 statement unsupported by evidence\nIn an action to recover for injuries sustained by minor plaintiff when he fell onto the road while riding his bieycle and was struck by \u2022 defendant\u2019s truck, the .trial court\u2019s statement in its instructions that plaintiff was trying to \u201cbeat the truck to the driveway\u201d was unsupported by evidence and was prejudicial to plaintiff.\nAppeal by plaintiffs from Webb, Judge. Judgment entered 14 March 1975 in Superior Court, Wayne County. Heard in the Court of Appeals 25 September 1975.\nMinor plaintiff\u2019s complaint alleges that on 12 January 1973, between 6:00 p.m. and 6:15 p.m., he was riding a bicycle from his grandmother\u2019s home to his home on a rural paved road. He fell onto the roadway and defendant\u2019s truck, traveling in the same direction, struck the 13-year-old plaintiff. Texilease, defendant Wall\u2019s employer, is joined as a party defendant.\nDefendants deny negligence and allege contributory negligence in their answer. Plaintiff\u2019s reply alleges last clear chance.\nThere was evidence at the trial to show that the plaintiffs and the minor plaintiff\u2019s grandmother lived on Rural Paved Road 1545 in Wayne County. The grandmother\u2019s house was located north of plaintiffs\u2019 home, and there was a distance of 349 feet between the respective driveways of their homes leading into the paved road.\nThe evidence further tended to establish that at the time of the accident the road in front of plaintiffs\u2019 house was covered with six to eight inches of ice, and the ice extended 150 to 160 feet north of plaintiffs\u2019 driveway.\nThe minor plaintiff testified that he and his two younger brothers were riding their bicycles from their grandmother\u2019s south towards their home. Minor plaintiff saw the lights of defendant Wall\u2019s truck when it was approximately one-half mile north from plaintiffs\u2019 driveway. When the minor plaintiff attempted to turn into his driveway, his bicycle slipped from under him, and he fell. Minor plaintiff testified that at this time the defendant\u2019s truck was in the vicinity of his grandmother\u2019s driveway. When he attempted to get up he slipped and fell again, and defendant continued southwardly on highway 1545 and struck the minor plaintiff.\nThe jury found that plaintiff had not been injured by the negligence of the defendant. Plaintiffs appealed.\nDees, Dees, Smith, Powell and Jarrett, by William W. Smith, for plaintiff appellant.\nSmith, Anderson, Blount and Mitchell, by James D. Blount, Jr., for defendant appellee."
  },
  "file_name": "0373-01",
  "first_page_order": 401,
  "last_page_order": 404
}