{ "id": 8626467, "name": "J. B. DIXON v. S. B. BROCKWELL and STERLING M. BROCKWELL, t/a TAR HEEL GAS & OIL COMPANY, and CARL M. MARTIN v. STERLING M. BROCKWELL, and GEORGE WAKEFIELD, JR., v. S. B. BROCKWELL and STERLING M. BROCKWELL, t/a TAR HEEL GAS & OIL COMPANY, and S. M. BROCKWELL, Individually, and FRANK N. MARTIN v. STERLING M. BROCKWELL", "name_abbreviation": "Dixon v. Brockwell", "decision_date": "1947-06-05", "docket_number": "", "first_page": "567", "last_page": "571", "citations": [ { "type": "official", "cite": "227 N.C. 567" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "217 N. C., 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601427 ], "opinion_index": 0, "case_paths": [ "/nc/217/0164-01" ] }, { "cite": "220 N. C., 384", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11303027 ], "opinion_index": 0, "case_paths": [ "/nc/220/0384-01" ] } ], "analysis": { "cardinality": 509, "char_count": 12906, "ocr_confidence": 0.45, "pagerank": { "raw": 1.5742648283925133e-07, "percentile": 0.6792349669807004 }, "sha256": "eed45b4e2f17e296fbd39a24e422a2e9e40eff8b2d8ec5b83a92df0008112820", "simhash": "1:b898a9b64b1fb66b", "word_count": 2213 }, "last_updated": "2023-07-14T16:20:04.384970+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "J. B. DIXON v. S. B. BROCKWELL and STERLING M. BROCKWELL, t/a TAR HEEL GAS & OIL COMPANY, and CARL M. MARTIN v. STERLING M. BROCKWELL, and GEORGE WAKEFIELD, JR., v. S. B. BROCKWELL and STERLING M. BROCKWELL, t/a TAR HEEL GAS & OIL COMPANY, and S. M. BROCKWELL, Individually, and FRANK N. MARTIN v. STERLING M. BROCKWELL." ], "opinions": [ { "text": "Winborne, J.\nAs to appeal by plaintiffs J. B. Dixon, Carl M. Martin and George Wakefield, Jr.:\nThese appellants assign as error, among others, the response of the court to a question from the jury.\nIn this connection it appears from the record that in charging the jury on Wednesday the court instructed the jury in respect to the first issue that if they, the defendant and Martin, \u201cboth were guilty of negligence, and their negligence proximately contributed to this event and brought this about and became one of the proximate causes, concurring and cooperating with one another\u2019s negligence, then it would be your duty to answer this Yes.\u201d It also appears that after some deliberation on Friday morning, tbe jury returned into open court, and requested that the charge on the first issue be repeated, \u2014 saying that \u201cthere seems to be a little bit of misunderstanding on the charge\u201d about what the law is as to negligence. Thereupon, the court proceeded to charge extensively in that respect,- \u2014 including among many others an instruction in substance that if the jury should find by the greater weight of the evidence that defendant were guilty of negligence, that became one of the proximate causes of the injuries to plaintiffs Dixon, Carl Martin, Davis and Wakefield and that Frank N. Martin were guilty of negligence, that became one of the proximate causes, concurring with the negligence of defendant, then the jury answer the first issue Yes.\nThen the court inquired of the jury if there were \u201cany other matters.\u201d \"Whereupon, a juror asked this question: \u201cYour Honor, in an issue of this kind'would it be possible to find both parties negligent?\u201d, to which the court replied: \u201cNo, sir, you could not.\u201d Exception 19. \u201cDo you mean find. both parties guilty of negligence and answer the issue ?\u201d Juror: \u201cOn issue No. 1?\u201d The court: \u201cOn issue No. 1 is it possible to find both parties guilty of negligence on issue No. 1? Let me read this issue.\u201d Then the court proceeded to give instruction on the first issue in respect to concurrent negligence of defendant and plaintiff Martin, and then on the second and third issues and on the eighth issue as to damage, if any, Frank N. Martin is entitled to recover. And then the court concluded with the following: \u201cYou cannot find Carl M. Martin, J. B. Dixon, George Wakefield, Jr., and A. B. Davis guilty of any negligence. They had no control over either car, the truck or the passenger car. (As the court instructed you, if you answer this issue Yes, you would have to find it was the negligence of the defendant, his solo negligence, that became the proximate cause, or the defendant\u2019s negligence concurring with the negligence of Frank Martin, Frank Martin\u2019s negligence being one of the proximate causes. You would have to find that it was the defendant\u2019s sole negligence, or that it was the defendant\u2019s negligence and Frank Martin\u2019s negligence, concurring, proximately bringing about this injury to these plaintiffs to answer this issue Yes. If you find that it was the sole negligence of Frank Martin and not any negligence of the defendant, of course, you would answer issue No. 1, No, if the defendant did not proximately . . . did not and was not guilty of negligence, proximately bringing about this event).\u201d That portion in parentheses constitutes Exception 23.\nThese plaintiffs contend that the charge, in the respects indicated, among others, is conflicting and calculated to confuse the jury, \u2014 particularly when, in answer to the question of the juror as to whether it would be possible to find both parties negligent, in considering the first issue, the court replied: \u201cNo, sir, you could not.\u201d After careful consideration, this Court is of opinion that the charge so given is vulnerable to the attack made upon it. Was the jury to understand that if the jury should find that both the defendant and Frank N. Martin were negligent, and that the negligence of each concurred with that of the other as a proximate cause of the collision, the first issue could not be answered in the affirmative? The meaning is not clear and is susceptible of an interpretation inconsistent with other portions of the charge which are correct statements of the law. Defendant contends, on the other hand, that the charge taken as a whole may not be held for error. However, in this connection, the decisions of this Court uniformly hold that 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 as the jury, which must take the law from the court, is not supposed to know which is the correct instruction. Hence, we must assume in such cases, in passing upon appropriate exception, that the jury, in coming to a verdict, was influenced by that portion of the charge which is incorrect. S. v. Starnes, 220 N. C., 384, 17 S. E. (2d), 346; Templeton v. Kelley, 217 N. C., 164, 7 S. E. (2d), 380, and numerous other cases cited therein.\nIt is appropriate to say that consideration of this appeal leads to the conclusion that it would be better to try the actions brought by these plaintiffs, passengers in the Frank N. Martin car, separately from the action brought by Frank N. Martin. This is so even though these plaintiffs make no allegation of negligence against Frank N. Martin. They elect to allege a cause of action for actionable negligence only against the defendant, and may recover only if they make good on these allegations, even if Frank N. Martin were negligent also, and that his negligence were a proximate cause of, and concurred in bringing about the collision in question. Hence the issue in their actions is one of negligence of defendant, and proximate cause, and concurring negligence of Frank N. Martin has no place in the trial of their causes. While, on the other hand, in the Frank N. Martin case, there are issues of negligence and contributory negligence which require appropriate instructions.\nFor error pointed out, there must be a new trial on this appeal.\nAs to appeal by plaintiff Frank N. Martin :\nThe judgment from which Frank N. Martin appeals is based upon the verdict on the first issue. Since there is error in respect to that verdict, and there is to be a new trial in the action to which the first issue relates, a new trial in the action brought by him necessarily follows.\nOn appeal by J. B. Dixon, Carl M. Martin and George Wakefield, Jr.,\nNew trial.\nOn appeal by Frank N. Martin,\nNew trial.", "type": "majority", "author": "Winborne, J." } ], "attorneys": [ "Hlledge & Hayes for J. B. Dixon, appellant.", "Hastings \u25a0& Booe and W. 8. Mitchell for Carl M. Martin, appellant.", "Robert A. Merritt for George Wahefield, Jr., appellant.", "Deal & Hutchins for Frank N. Martin, appellant.", "Womble, Garlyle, Martin & Sandridge and Hudgins & Adams for Sterling M. Brockwell, appellee." ], "corrections": "", "head_matter": "J. B. DIXON v. S. B. BROCKWELL and STERLING M. BROCKWELL, t/a TAR HEEL GAS & OIL COMPANY, and CARL M. MARTIN v. STERLING M. BROCKWELL, and GEORGE WAKEFIELD, JR., v. S. B. BROCKWELL and STERLING M. BROCKWELL, t/a TAR HEEL GAS & OIL COMPANY, and S. M. BROCKWELL, Individually, and FRANK N. MARTIN v. STERLING M. BROCKWELL.\n(Filed 5 June, 1947.)\n1. Automobiles \u00a7 22\u2014\nPlaintiffs, guests in an automobile, brought this action against the owner of a truck involved in a collision with the car. On the issue of whether plaintiffs were injured by the negligence of defendant, the court in response to a question from a juror as to whether it would be possible to find \u201cboth parties\u201d negligent, replied in the negative, and then correctly instructed the jury that if the jury found -that the driver of the car and the driver of the truck were guilty of concurrent negligence, to answer the issue in the affirmative. Held: The conflicting instructions must be held for reversible error.\n2. Appeal and Error \u00a7 39f\u2014\nConflicting instructions upon a material aspect of the case must be held for reversible error.\n3. Automobiles \u00a7 22\u2014\nWhere guests in a car, having no control over its operation, and the driver of the car bring actions against the owner of a truck involved in a collision with the car, it is the better practice to try the actions by the guests separate from the action by the driver of. the car, since in the guests\u2019 actions the issue of concurring negligence of the drivers is not germane, while in the action by the driver of the car the issues of negligence and contributory negligence arise.\n4. Appeal and Error \u00a7 47\u2014\nWhere a new trial is awarded certain appellants for error of law committed in the trial of one of the issues, and judgment against another appellant is based upon that verdict, a new trial as to such other appellant will be necessarily awarded on his appeal.\nAppeal by plaintiffs in the four actions from Rousseau, J., at November Term, 1946, of Foesyti-i.\nFour civil actions to recover for personal injuries allegedly sustained in a motor vehicle collision resulting from actionable negligence of defendant.\nOn the early morning of 15 August, 1943, a passenger car, owned and operated by Frank N. Martin, in which J. B. Dixon, Carl M. Martin, George Wakefield, Jr., A. B. Davis and Bob Wycoff were riding as guests of Frank N. Martin, but having no control of the operation of his car, traveling from Durham, N. 0., toward Winston-Salem, N. C., on the Hillsboro highway, and a tractor-trailer truck, or tractor-tanker unit owned by defendant and operated by his agent in the business of transporting petroleum products, and loaded with gasoline, traveling toward Durham on said highway, collided on a curve at a point 7, 8 or 10 miles from Durham, in edge of Orange County, North Carolina, a short distance west of Eno station, resulting in injury to the driver and passengers in the car.\nFour separate actions were instituted by J. B. Dixon, Carl M. Martin, George Wakefield, Jr., and A. B. Davis, respectively, passengers in the car of Frank N. Martin, and another action was instituted by Frank N. Martin, all against the defendant, or defendants named in captions. By consent of counsel for all the parties all the cases so instituted were consolidated for trial. During the course of the trial the plaintiffs in the five actions submitted to voluntary nonsuits as to all defendants except Sterling M. Brockwell.\n\u2022 The several plaintiffs allege in their respective complaints, as acts of negligence proximately causing the collision in question, and on the trial offered evidence tending to show that as the tractor-trailer or tractor-tank unit of defendant approached the bridge over Stony Creek, and the point of impact, it was traveling at a speed of 50 to 60 miles per hour, and to its left side of the center line of the highway in the path of the car of Frank N. Martin, until too late to get back on its side of the highway.\nOn the other hand, defendant answering each of the several complaints, denies the allegations of negligence in each of the actions instituted by the passengers in the Martin car, and avers that, in so far as the plaintiffs, who were passengers in the Martin car are concerned, the sole and proximate cause of the collision, and, in so far as Frank N. Martin is concerned, that the proximate cause or one of the proximate causes of the collision was the negligent and unlawful manner in which the Martin car was being operated, in respects specifically set forth, and as to each plaintiff pleads contributory negligence, and on trial offered evidence in reference to these averments.\nThe case was submitted to the jury upon one set of eight issues. The first three issues were as follows:\n\u201c1. Were the plaintiffs, Carl M. Martin, J. B. Dixon, George Wake-field, Jr., and A. B. Davis, injured by the negligence of the defendant, S. M. Broekwell, as alleged in the complaints ?\n\u201c2. Was the plaintiff, Frank N. Martin, injured and his property damaged by the negligence of the defendant, S. M. Brockwell, as alleged in the complaint?\n\u201c3. Did the plaintiff, Frank N. Martin, by his own negligence contribute to the injuries and damage sustained by him, as alleged in the answer ?\u201d\nThe last five were with respect to what damages, if any, is each plaintiff entitled to recover of the defendant.\nWhen the charge of the court was concluded on Wednesday, before Thanksgiving, after hearing an expression of the jurors\u2019 wishes as to whether they preferred to commence their deliberations upon the issues on Friday morning, the court instructed the jury to return and commence deliberation on the issues on Friday morning.\nThe jury answered the first issue \u201cNo,\u201d but did not answer any other issue. Thereupon, the court signed judgment in favor of defendant in each of the several actions \u2014 and the several plaintiffs gave notice of appeal to Supreme Court. Plaintiff A. B. Davis abandoned his appeal. Plaintiffs J. B. Dixon, Carl M. Martin and George Wakefield, Jr., bring up one appeal and assign error, and plaintiff Frank N. Martin, a separate appeal, and assigns error.\nHlledge & Hayes for J. B. Dixon, appellant.\nHastings \u25a0& Booe and W. 8. Mitchell for Carl M. Martin, appellant.\nRobert A. Merritt for George Wahefield, Jr., appellant.\nDeal & Hutchins for Frank N. Martin, appellant.\nWomble, Garlyle, Martin & Sandridge and Hudgins & Adams for Sterling M. Brockwell, appellee." }, "file_name": "0567-01", "first_page_order": 615, "last_page_order": 619 }