{ "id": 8523798, "name": "BETTY EVANS DOBSON and husband, FRANK TIM DOBSON v. GLORIA HUNT HONEYCUTT and DONALD D. HONEYCUTT", "name_abbreviation": "Dobson v. Honeycutt", "decision_date": "1986-01-21", "docket_number": "No. 8529SC743", "first_page": "709", "last_page": "715", "citations": [ { "type": "official", "cite": "78 N.C. App. 709" } ], "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": "272 S.E. 2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "49 N.C. App. 642", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523168 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/49/0642-01" ] }, { "cite": "298 S.E. 2d 69", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "59 N.C. App. 633", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527090 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/59/0633-01" ] }, { "cite": "181 S.E. 2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "11 N.C. App. 310", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554615 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/11/0310-01" ] }, { "cite": "180 S.E. 2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560580 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0390-01" ] }, { "cite": "121 S.E. 2d 726", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "255 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569674 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/255/0374-01" ] }, { "cite": "149 S.E. 2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 1 }, { "cite": "268 N.C. 23", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560031 ], "year": 1966, "opinion_index": 1, "case_paths": [ "/nc/268/0023-01" ] }, { "cite": "154 S.E. 2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 1 }, { "cite": "270 N.C. 433", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568739 ], "year": 1967, "opinion_index": 1, "case_paths": [ "/nc/270/0433-01" ] }, { "cite": "121 S.E. 2d 726", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1961, "pin_cites": [ { "page": "728" } ], "opinion_index": 1 }, { "cite": "255 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569674 ], "weight": 2, "year": 1961, "pin_cites": [ { "page": "376" } ], "opinion_index": 1, "case_paths": [ "/nc/255/0374-01" ] } ], "analysis": { "cardinality": 644, "char_count": 14392, "ocr_confidence": 0.823, "pagerank": { "raw": 8.797151078331849e-08, "percentile": 0.4962746862847988 }, "sha256": "992a65a5690c5837e6271d907c03ed795126d2ca91aee12137d6b8c4666718ad", "simhash": "1:4723d22f366774d4", "word_count": 2457 }, "last_updated": "2023-07-14T22:39:04.225821+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Arnold concurs.", "Judge Parker concurs in the result." ], "parties": [ "BETTY EVANS DOBSON and husband, FRANK TIM DOBSON v. GLORIA HUNT HONEYCUTT and DONALD D. HONEYCUTT" ], "opinions": [ { "text": "WELLS, Judge.\nPlaintiffs contend that the trial court erred in its instructions to the jury. We agree and award plaintiffs a new trial. Defendants contend the trial court erred in dismissing their counterclaim. We disagree and affirm the trial court\u2019s order.\nPlaintiffs\u2019 Appeal\nPlaintiffs first assign error to the trial court\u2019s refusal to give a peremptory instruction as to defendant Gloria Honeycutt\u2019s negligence. The requested instruction was as follows: \u201c[W]hen you come to the First Issue, the Court instructs you, that if you find the facts to be as the evidence tends to show, you will answer that Issue Yes.\u201d Peremptory instructions in an appropriate case have long been accepted practice in North Carolina. See 12 Strong\u2019s N.C. Index, Trial \u00a7 31 (3d ed. 1978) and cases cited therein and Shuford, N.C. Civ. Prac. & Proc. \u00a7 51-4 (2d ed. 1981) and cases cited therein. When all the evidence offered suffices, if true, to establish the controverted fact, the Court may give a peremptory instruction \u2014 that is, if the jury finds the facts to be as all the evidence tends to show, it will answer the inquiry in an indicated manner. Denial of an alleged fact raises an issue as to its existence even though no contradictory evidence has been offered. Chisholm v. Hall, 255 N.C. 374, 121 S.E. 2d 726 (1961); see also Cutts v. Casey, 278 N.C. 390, 180 S.E. 2d 297 (1971).\nWhile we view the evidence in this case as entitling plaintiffs to an appropriate peremptory instruction, the instruction requested by plaintiffs was not appropriate and amounted to a request for a directed verdict. An appropriate peremptory instruction must make it clear that the jury should be guided by what they find the greater weight of the evidence to be and should make it clear that the jury may accept or reject the evidence: they may answer the issue either yes or no, that is, that they have a choice as to how they answer the issue. See, e.g., an approved form of instruction stated in Terrell v. Chevrolet Co., 11 N.C. App. 310, 181 S.E. 2d 124 (1971) and N.C. Pattern Jury Instructions \u2014 Civil 101.65 (1982). This assignment is overruled.\nIn their second and third assignments of error, plaintiffs contend that in its instructions to the jury, the trial court failed to properly recapitulate the evidence and failed to properly apply the law to the evidence. At the time of the trial, the controlling statute, N.C. Gen. Stat. \u00a7 1A-1, Rule 51(a) of the Rules of Civil Procedure, provided:\nIn charging the jury in any action governed by these rules, no judge shall give an opinion whether a fact is fully or sufficiently proved, that being the true office and province of the jury, but he shall declare and explain the law arising on the evidence given in the case. The judge shall not be required to state such evidence except to the extent necessary to explain the application of the law thereto; provided, the judge shall give equal stress to the contentions of the various parties.\nThe trial court\u2019s summary of the evidence, in pertinent part, was as follows:\nThe plaintiffs have offered evidence tending to show that on March 20th, 1984 at about 4:45 P.M., Mrs. Betty Evans Dobson was driving a 1976 Buick automobile in a southeasterly direction on a rural paved road in McDowell County; that her automobile collided with a 1973 Dodge automobile travel-ling in a northwesterly direction on the same rural paved road in McDowell County; that the 1973 Dodge automobile was driven by Mrs. Gloria Honeycutt; that the collision occurred southeast and left of the hillcrest ....\nThe defendants offered evidence tending to show that on March 20th, 1984, at about 4:45 P.M., Mrs. Gloria Honeycutt was driving a 1973 Dodge automobile in a northwesterly direction on a rural paved road in McDowell County; that her son, age 6, was with her; that she does not remember the wreck; that her son told Officer Jones that she said \u201clook out, that man is going to hit us, before she lost control of her car.\u201d That her automobile collided with the 1976 Buick automobile driven by Mrs. Betty Evans Dobson which was trav-elling in a southeastern direction on the same rural paved road in McDowell County ....\nThis statement of the evidence, failing as it did to even mention the compelling direct and circumstantial evidence that the Honey-cutt car was in the Dobson car\u2019s lane of travel when the collision occurred, failed to give equal stress to the contentions of the parties.\nIn its final mandate, the trial court applied the law to the evidence as follows:\nFinally, as to this issue, I instruct you that if the plaintiff has proved by the greater weight of the evidence that at the time of the collision, the defendant was negligent in one or more of the following respects either in that she operated her motor vehicle without keeping a reasonable lookout or without keeping it under proper control or without driving her vehicle as nearly as practicable within a single lane. I say, if the plaintiff has proved by the greater weight of the evidence that the defendant was negligent in any one or more of these respects and if the plaintiff has further proved by the greater weight of the evidence that such negligence was a proximate cause of plaintiffs injury and damage, it would be your duty to answer this issue in favor of the plaintiff. On the other hand, if considering all the evidence, the plaintiff has failed to prove such negligence or proximate cause, then it would be your duty to answer this issue \u201cno\u201d in favor of the defendant.\nThis instruction totally omitted any reference to the negligence of defendant Gloria Honeycutt in driving to the left of center (or crossing the center line), a vital aspect of this case.\nFor errors in the jury instructions, there must be a new trial.\nDefendants\u2019 Appeal\nPlaintiffs\u2019 motion for a directed verdict on defendants\u2019 counterclaim tested the legal sufficiency of the evidence to take the question of plaintiffs\u2019 negligence to the jury and support a verdict for defendants. On the motion, defendants\u2019 evidence must be taken as true, giving defendants the benefit of every reasonable inference to be drawn therefrom. Plaintiffs\u2019 motion was not properly allowed unless it appears as a matter of law that defendants could not recover of plaintiffs upon any reasonable view of the facts which the evidence reasonably tended to establish. If, when so viewed, the evidence is such that reasonable minds could differ as to whether defendants were entitled to recover of plaintiffs, the motion was not properly granted. See Koonce v. May, 59 N.C. App. 633, 298 S.E. 2d 69 (1982) and cases cited therein. Applying these principles to the evidence in this case, we conclude that there was no evidence more than a scintilla of negligence on the part of Betty Dobson, Hunt v. Montgomery Ward & Co., 49 N.C. App. 642, 272 S.E. 2d 357 (1980) and that plaintiffs\u2019 motion was properly allowed.\nThe results are:\nAs to plaintiffs\u2019 appeal,\nNew trial.\nAs to defendants\u2019 appeal,\nNo error.\nJudge Arnold concurs.\nJudge Parker concurs in the result.", "type": "majority", "author": "WELLS, Judge." }, { "text": "Judge Parker\nconcurring in result.\nI concur in the result, but I would overrule plaintiffs\u2019 first assignment of error regarding the peremptory instruction for a different reason. Under the authority of Electro Lift, Inc. v. Miller Equipment Company, 270 N.C. 433, 154 S.E. 2d 465 (1967), a trial judge in giving a peremptory instruction in his charge to the jury must give the jury the opportunity for either an affirmative or negative response, and I agree with the majority that the proper form for the instruction is as set forth in the civil pattern jury instructions. However, in my view plaintiffs\u2019 request in the case at bar was a sufficient request for a peremptory instruction. There is ample case authority suggesting that the request made by plaintiffs is a peremptory instruction. In fact, in Chisholm v. Hall, 255 N.C. 374, 121 S.E. 2d 726 (1961), the court suggested that the words \u201cif you find the facts to be as all the evidence tends to show\u201d are a peremptory instruction. Rodman, J., writing for the Court stated:\nWhen all the- evidence offered suffices, if true, to establish the controverted fact, the court may give a peremptory instruction \u2014 that is, if the jury find the facts to be as all the evidence tends to show, it will answer the inquiry in an indicated manner. Defendant\u2019s denial of an alleged fact raises an issue as to its existence even though he offers no evidence tending to contradict that offered by plaintiff. A peremptory instruction does not deprive the jury of its right to reject the evidence because of lack of faith in its credibility. (Citing cases.)\n255 N.C. at 376, 121 S.E. 2d at 728. See also Heating Co. v. Construction Co., 268 N.C. 23, 149 S.E. 2d 625 (1966).\nHowever, I am of the opinion that this assignment of error should be overruled for the reason that upon the evidence presented plaintiff was not entitled to a peremptory instruction and the trial judge did not err in denying the request.", "type": "concurrence", "author": "Judge Parker" } ], "attorneys": [ "Byrd, Byrd, Ervin, Whisnant, McMahon & Ervin, P.A., by Robert B. Byrd and Sam J. Ervin, IV; and Van Winkle, Buck, Wall, Starnes & Davis, P.A., by Philip J. Smith, for plaintiffs.", "Watson and Hunt, by Frank H. Watson and Charlie A. Hunt, Jr.; and Coats & Pool, by Donald F. Coats, for defendants." ], "corrections": "", "head_matter": "BETTY EVANS DOBSON and husband, FRANK TIM DOBSON v. GLORIA HUNT HONEYCUTT and DONALD D. HONEYCUTT\nNo. 8529SC743\n(Filed 21 January 1986)\n1. Trial \u00a7 31\u2014 peremptory instructions\nThe trial court did not err in refusing to give plaintiffs\u2019 requested peremptory instruction as to defendant\u2019s negligence that, \u201c[W]hen you come to the First Issue, the Court instructs you, that if you find the facts to be as the evidence tends to show, you will answer that Issue Yes,\u201d since the instruction was not an appropriate peremptory instruction in that it did not give the jury a choice as to whether they would accept or reject the evidence but instead amounted to a request for a directed verdict.\n2. Automobiles \u00a7 90.10\u2014 crossing center line \u2014 failure to mention in instructions\nIn an action for negligent operation of an automobile, the trial court\u2019s recapitulation of the evidence, failing as it did even to mention the compelling direct and circumstantial evidence that defendant\u2019s car was in plaintiffs car\u2019s lane of travel when the collision occurred, failed to give equal stress to the contentions of the parties; furthermore, the court erred in its final mandate to the jury by omitting any reference to the negligence of defendant in driving to the left of center, or crossing the center line, a vital aspect of the case.\nJudge Parker concurring in the result.\nAppeal by plaintiffs and defendants from Hyatt, Judge. Judgments entered 13 and 14 February 1985 in MCDOWELL County Superior Court. Heard in the Court of Appeals 5 December 1985.\nPlaintiffs brought an action against defendants for negligent operation of defendant Donald Honeycutt\u2019s automobile by his wife, defendant Gloria Honeycutt. Defendants counterclaimed against plaintiffs for the negligent operation of plaintiff Frank Dobson\u2019s automobile by his wife, plaintiff Betty Dobson.\nAt trial, plaintiffs\u2019 evidence on the question of negligence consisted of the testimony of Highway Patrolman J. A. Jones and plaintiff Betty Dobson. Jones testified in summary as follows. At about 5:00 p.m. on 20 March 1982, he investigated a collision between automobiles driven by Betty Dobson and Gloria Honeycutt. His investigation disclosed that Mrs. Dobson was driving her Buick automobile in a southeasterly direction along Harmony Grove Road, a two lane rural paved road. Mrs. Honeycutt was driving her Dodge automobile in the opposite direction. The collision occurred at a curve on a hill where the road was marked by a double yellow line. The collision occurred at about 4:45 p.m. When Jones arrived on the scene, the Dobson car was off the left side of the road, the front end against an embankment and the rear of the car on the paved portion of the road. Jones found tire marks leading from about one foot inside Dobson\u2019s lane of travel to the rear tires of Dobson\u2019s car, for a distance of about 48 feet. He also found a fresh gouge mark in the pavement about one foot inside Dobson\u2019s lane of travel. The mark was about three feet long. The left front tire of the Dobson car was burst and the left front tire and frame were \u201ckicked back\u201d some. The left front portion of the Dobson car was damaged. There was debris all over the road. Jones interviewed Mrs. Dobson at the scene. She told him that when she came over the crest of the hill, she saw the car on her side of the road and they \u201chit\u201d on her side of the road. Jones interviewed Mrs. Honeycutt at the scene, but she did not remember the collision. Jones also talked with Mrs. Honeycutt\u2019s 6-year-old son at the scene, who told him, \u201cMy mom lost control of the car and hit the man and the other car.\u201d Before the collision, his mother said, \u201cLook out, the man is going to hit us.\u201d When he arrived, Jones found the Honeycutt car partially off the road, with the front about IV2 feet from the center line.\nMrs. Dobson testified that she was driving along Harmony Grove Road in her right hand lane of travel. When she came \u201cacross the hill\u201d she saw the Honeycutt car in her lane of travel. Dobson had \u201cno place to go.\u201d The collision occurred about three feet inside Dobson\u2019s lane of travel. When the impact occurred, it punctured Dobson\u2019s tire and sent her \u201cvarying\u201d to the left into an embankment. The left side of the Honeycutt car struck the left side of the Dobson car.\nDefendants\u2019 evidence consisted of the testimony of Barry Mingle and Eugene Edwards, members of the Nebo Fire Department, and Mrs. Honeycutt. Mrs. Honeycutt did not remember the collision, recalling nothing after she left home until being placed in an ambulance. Both Mingle and Edwards arrived at the scene soon after the collision and gave first aid. Each observed some debris near the Honeycutt car, but did not recall seeing debris in Dobson\u2019s lane of travel.\nAt the close of the evidence, the trial court granted plaintiffs\u2019 motion for a directed verdict as to defendants\u2019 counterclaim. The jury answered the issues of defendant Gloria Honeycutt\u2019s negligence in defendants\u2019 favor. From judgment entered on the verdict, plaintiffs appealed. Defendants appealed from the dismissal of their counterclaim.\nByrd, Byrd, Ervin, Whisnant, McMahon & Ervin, P.A., by Robert B. Byrd and Sam J. Ervin, IV; and Van Winkle, Buck, Wall, Starnes & Davis, P.A., by Philip J. Smith, for plaintiffs.\nWatson and Hunt, by Frank H. Watson and Charlie A. Hunt, Jr.; and Coats & Pool, by Donald F. Coats, for defendants." }, "file_name": "0709-01", "first_page_order": 741, "last_page_order": 747 }