#### THOMAS BOWEN, Administrator of ELIZA BOWEN, v. M. F. SCHNIBBEN.

(Filed 25 October, 1922.)

1. Instructions — Prejudicial Omissions — Appeal and Error — Statutes.

Where the effect of a charge of the court to the jury is to eliminate from the case au instruction upon a principle of law arising from the evidence, so necessary that its omission would necessarily and substantially prejudice one of the parties, in the consideration of the evidence by the jury, it will be held for reversible error, notwithstanding the party so prejudiced has not tendered a prayer for instruction covering the omission of which he complains. O. S., 664.

2. Same — Prayer for Instruction.

Where a statute appertaining to the matters in controversy provides that certain acts of omission or commission shall or shall not constitute negligence, it is incumbent on the trial judge, in his charge to the jury, to apply to the various aspects of the statute such principles of the law of negligence as may arise under the evidence in the case.

*2493. Same — Negligence—Automobiles.

An instruction in an action to recover damages for the alleged negligence of the defendant in running upon and killing the plaintiff’s intestate while a pedestrian upon the highway that fails to charge- specifically as to the speed, the lookout, the signal, or control of the machine, or the other requirements of the driver of the automobile prescribed by the statutes, C. S., 2116, 2118, and arising from the evidence in the ease, is not cured by a general charge upon the rule of the prudent man, as to speed, or lookout, or the management of the car; and the omissions to charge specifically upon the statutory obligations is reversible error, without the tender of a prayer for more specific instructions by the plaintiff.

Appeal by plaintiff from Bond, J., at May Term, 1922, of New BlANOVER.

Civil action to recover damages for the intestate’s death, alleged to have been caused by tbe negligence of tbe defendant while operating an automobile-on a public highway. The first issue, Was the death of the plaintiff’s intestate caused by the negligence of the defendant, as alleged in the complaint? was answered in the negative. Judgment, and appeal by plaintiff.

John D. Bellamy & Sons for plaintiff.

Herbert McOlammy, J. 0. King, and K. 0. Burgwin for defendant.

Adams, J.

On 22 July, 1920, between 3 and 4 o’clock in the afternoon, James Ballard and Eliza Bowen, the plaintiff’s intestate, were walking in or near the village of Villa View along the principal thoroughfare which extends from Wilmington to Wrightsville. At about 3:30 the defendant, driving a Chalmers ear, left Wilmington in company with his father to call on the operator of the substation at Wrights-ville. The defendant, the intestate, and Ballard were going in the same direction. The speed at which the car was moving was variously estimated by the witnesses. One witness said that before it came in sight he heard “a rumbling and a roar” that sounded like an aeroplane. Another likened the speed to that of flying. There was evidence tending to show that every time they struck a “bump” in the road the wheels of the car jumped three or four inches, and that the speed was not less than fifty miles an hour. Norma Craft, 11 years of age, testified that she was going toward Wilmington on a bicycle along the right side of the road, “almost in the grass and looking ahead,” when the automobile struck her rear wheel and destroyed it. The defendant knew nothing of - this collision at the time, but learned of it afterward. Immediately after striking the bicycle, the machine swerved to the right — two wheels going off the hard surface into the sand — and got beyond the defendant’s *250control. Tbe defendant testified tbat be was running not more tban fifteen miles an bour, and tbat be turned to tbe right to avoid a collision with Norma Craft, who was going across tbe road, and in doing so lost control of bis steering wheel and found himself unable to get back into tbe road as quickly as be thought be could. At this time Ballard and tbe deceased were some distance in advance. Tbe defendant said tbat they were on tbe bard road, and Ballard said they were off tbe road and in tbe sand; at any rate, they were at tbe right side of tbe highway. There was evidence tending to show tbat tbe klaxon was not sounded and no signal of approach was given. With slight abatement of speed, if any at all, tbe automobile struck both Ballard and tbe deceased. Ballard was thrown over tbe top of tbe car, and tbe deceased, burled twenty feet in tbe air, fell on tbe radiator. Within two hours she died; Ballard survived. Tbe defendant did not deny tbat tbe death of tbe intestate was caused by tbe collision.

This outline of tbe evidence will serve to explain tbe cause of action and tbe ground of the plaintiff’s exception. After stating tbe contentions of tbe parties, bis Honor instructed tbe jury on tbe first issue as follows: “Was this defendant operating bis machine, as to speed and as to lookout, and in all other respects, in such a way as a person of reasonable care and prudence, considering tbe deadly nature of an automobile, would have done under tbe same circumstance ? If you say you find be was, and tbat there was no negligence on bis part, your answer to tbe first issue should be ‘No.’ ”

To this instruction tbe plaintiff excepted, and assigned as error not so much its inaccuracy as its limited or restricted scope. In C. S., 2116, it is provided tbat upon approaching a pedestrian who is upon tbe traveled part of any highway, . . . every person operating a motor vehicle shall slow down and give a timely signal with bis bell, born, or other device for signalling; and section 2618, not including tbe recent amendment, is as follows: “No person shall operate a motor vehicle upon tbe public highways of this State recklessly, or at a rate of speed greater than is reasonable and proper, having regard to tbe width, traffic, and use of tbe highway, or so as to endanger tbe property or tbe life or limb of any person: Provided, tbat a rate of speed in excess of eighteen miles per bour in tbe residence portion of any city, town, or village, and a rate of speed in excess of ten miles per bour in tbe business portion of any city, town, or village, and a rate of speed in excess of twenty-five miles per bour on any public highway outside of tbe corporate limits of any incorporated city or town, shall be deemed a violation of this section: Provided further, tbat no person shall operate upon tbe public highways inside tbe corporate limits of any incorporated city or town of this State a motor vehicle with muffler cut-out open.”

*251In giving a charge to tbe petit jury, the judge shall state in a plain and correct manner the evidence given in the case, and declare and explain the law arising thereon. O. S., 564. It is true, under the provisions of this statute, that when a judge has charged generally on the essential features of a case, a litigant who desires a more direct application of the law to some particular phase of the evidence should bring it to the attention of the court by prayers for instructions, but where a statute appertaining to the matters in controversy provides that certain acts of omission or commission shall or shall not constitute negligence, it is incumbent upon the judge to apply to the various aspects of the evidence such principles of the law of negligence as may be prescribed by statute, as well as those which are established by the common law. Orvis v. Holt, 173 N. C., 233; Matthews v. Myatt, 172 N. C., 232. We think the court failed to comply with this requirement.' When the judge so charges as to eliminate from the case a substantial part of it, which would necessarily prejudice one of the parties, it will be reversible error. Matthews v. Myatt, supra. True, the jury were further instructed that if the defendant did not observe the rule of the prudent man as to speed, or lookout, or the management of the car, the issue should be answered in favor of the plaintiff, but they were not specifically instructed as to the law of negligence with reference to the speed, the lookout, the signal, or the control of the machine. If the defendant exceeded the legal rate of speed, or failed to slow down or give a timely signal when approaching the deceased, if she was on the traveled part of the highway, or operated his car recklessly or at a greater rate of speed than was reasonable and proper under the circumstances, or in such way as to endanger life, limb, or property, he was negligent, and if his negligence was the proximate cause of the intestate’s death, the answer to the first issue should be in the affirmative. Of course, in connection with the plaintiff’s contentions as to the alleged breach of the statute those of the defendant should receive due consideration.

We are of opinion that the controversy should be submitted to another jury with more specific instructions on the question of negligence.

New trial.