{ "id": 8560220, "name": "GLADYS TROGDEN DOVE v. LEVI CLARENCE CAIN, JR., and SHELBY JEAN KINLAW", "name_abbreviation": "Dove v. Cain", "decision_date": "1966-06-16", "docket_number": "", "first_page": "645", "last_page": "647", "citations": [ { "type": "official", "cite": "267 N.C. 645" } ], "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": "194 S.E. 83", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "212 N.C. 661", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617280 ], "opinion_index": 0, "case_paths": [ "/nc/212/0661-01" ] }, { "cite": "17 S.E. 2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "220 N.C. 521", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11305991 ], "opinion_index": 0, "case_paths": [ "/nc/220/0521-01" ] }, { "cite": "28 S.E. 2d 576", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "223 N.C. 788", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617600 ], "opinion_index": 0, "case_paths": [ "/nc/223/0788-01" ] }, { "cite": "46 S.E. 2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627435 ], "opinion_index": 0, "case_paths": [ "/nc/228/0555-01" ] }, { "cite": "78 S.E. 2d 448", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "238 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614134 ], "opinion_index": 0, "case_paths": [ "/nc/238/0573-01" ] }, { "cite": "71 S.E. 2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 121", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622682 ], "opinion_index": 0, "case_paths": [ "/nc/236/0121-01" ] } ], "analysis": { "cardinality": 356, "char_count": 6295, "ocr_confidence": 0.522, "pagerank": { "raw": 9.166256957399725e-08, "percentile": 0.5087723261085878 }, "sha256": "a4bbef220715a444b85a8452b9264fea1a0d522efb902e644efbb8c3f7484648", "simhash": "1:22e15e321aa08597", "word_count": 1071 }, "last_updated": "2023-07-14T22:57:43.953535+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Moore, J., not sitting." ], "parties": [ "GLADYS TROGDEN DOVE v. LEVI CLARENCE CAIN, JR., and SHELBY JEAN KINLAW." ], "opinions": [ { "text": "Denny, E.J.\nThe plaintiff assigns as error the following portion of the court\u2019s charge to the jury: \u201cThat she (Shelby Jean Kin-law) saw no signal nor no turn indicator or no signal of any kind; and that plaintiff suddenly stopped her automobile in front of defendants\u2019 automobile, and that defendants\u2019 automobile struck plaintiff\u2019s automobile in the center of the rear with the left front fender and bumper of the defendants\u2019 automobile * * * That the defendant Clarence Cain, Jr., was driving prior to this collision and before the collision down the road at a speed of 50 to 55 miles per hour; that the plaintiff suddenly stopped in front of him without giving any signal whatever.\u201d\nIt is apparent that the able and conscientious trial judge who tried this case below inadvertently overlooked the fact that there is no evidence tending to show that the plaintiff stopped her car suddenly in front of the defendants\u2019 car.\nThe defendants\u2019 evidence does not support their allegations in this respect. The defendants\u2019 evidence is unequivocally to the effect that there was nothing to have prevented the defendants from seeing the Dove car for more than a mile and that plaintiff\u2019s car was already stopped when defendant Shelby Jean Kinlaw first saw it. The defendant Kinlaw also testified, \u201cI think Mr. Cain and I both realized it was stopped at the same time.\u201d\nWhere the court in its.charge submits to the jury for their consideration facts material to the issue, which were no part of the evidence offered, it constitutes prejudicial error. State v. McCoy, 236 N.C. 121, 71 S.E. 2d 921; Darden v. Leemaster, 238 N.C. 573, 78 S.E. 2d 448, State v. Alston, 228 N.C. 555, 46 S.E. 2d 567; Curlee v. Scales, 223 N.C. 788, 28 S.E. 2d 576; Cummings v. Coach Co., 220 N.C. 521, 17 S.E. 2d 662; Smith v. Hosiery Mill, 212 N.C. 661, 194 S.E. 83.\nThe plaintiff is entitled to a new trial, and it is so ordered.\nNew trial.\nMoore, J., not sitting.", "type": "majority", "author": "Denny, E.J." } ], "attorneys": [ "Grady & Clark for plaintiff appellant.", "Hester & Hester for defendants, appellees." ], "corrections": "", "head_matter": "GLADYS TROGDEN DOVE v. LEVI CLARENCE CAIN, JR., and SHELBY JEAN KINLAW.\n(Filed 16 June, 1966.)\n1. Automobiles \u00a7 46\u2014\nThe car in which defendants were riding struck the rear of plaintiff\u2019s automobile, whieh could have been seen by defendants for about a mile, while plaintiff was stopped awaiting opportunity to make a left turn into an intersecting rural road. One of defendants testified that when she saw plaintiff\u2019s car it had already stopped and that she thought defendant driver realized plaintiff\u2019s ear was stopped at about the same time. Held: An instruction to the effect that defendants contended that plaintiff suddenly stopped in front of defendants\u2019 automobile must be held for prejudicial error as having no support in the evidence.\n2. Trial \u00a7 33\u2014\nIt is prejudicial error for the court to submit for the consideration of the jury facts material to the issue which are not supported by evidence.\nMooee, J., not sitting.\nAppeal by plaintiff from Mallard, J., November Session 1965 of BLADEN.\nThis is a civil action to recover for personal injuries allegedly sustained in an automobile collision.\nThe plaintiff alleged and offered evidence tending to show that she was operating her 1962 Chevrolet automobile in a northerly direction on N. C. Highway 242 on the morning of 2 February 1963; that she intended to make a left turn on rural paved highway No. 1114 at a \u201cT\u201d intersection of said rural highway with N. C. Highway 242; that for a distance of 600 feet before she reached the intersection she turned on her left signal to turn, and at the time the defendant's automobile was about 600 feet behind her; that she slowed down to about five miles an hour, and while she was still in her lane of travel waiting for an oncoming vehicle to pass before starting her left turn, defendants\u2019 car struck plaintiff\u2019s car in the rear, resulting in serious injuries to the plaintiff.\nThe plaintiff offered evidence tending to show serious injury, extensive medical expenses, and loss of wages.\nThe defendants in their further answer and defense alleged that plaintiff was on 2 February 1963, at the time and place aforesaid, operating her automobile in a northerly direction on said highway several hundred yards in front of the automobile of the defendant Shelby Jean Kinlaw, which was being operated by Levi Clarence Cain, Jr.; that the automobile being operated by the plaintiff suddenly and without any visible signal of any kind stopped in said highway. \u201c* * * (T)he sudden stopping of the plaintiff\u2019s vehicle without any signal or indication thereof made a collision between said vehicles unavoidable, and the defendant\u2019s vehicle collided with the rear portion of the plaintiff\u2019s vehicle.\u201d\nAccording to defendants\u2019 evidence, the defendants have married since 2 February 1963. The defendants allege in their answer that defendant Shelby Jean Kinlaw (now Cain) and her boy friend prior to the collision were traveling several hundred yards behind the plaintiff\u2019s car. The defendants\u2019 evidence is to the effect that it had been \u201craining and was still drizzling and misting\u201d; that the male defendant was driving the car with the consent and approval of the owner. The feme defendant testified: \u201cWe were riding along and I was probably talking to Levi and he was probably talking to me. * * * I saw the Dove car there in the road and * * * the time I saw it it was stopped. I don\u2019t know how far we were from it when we first saw it. * * \u00ae I think Mr. Cain and I both realized that it was stopped at the same time. Mr. Cain mashed the brakes. * * * my car * * * went directly into the back of Mrs. Dove\u2019s car, about the rear center, * * * The first instant that I observed the Dove car it was not moving and it was stopped in the road.\u201d This witness also testified, \u201cHighway 242 is a straight road. That before getting to the intersection, * * * it is straight for more than a mile * * * There was nothing to have prevented me from seeing the Dove automobile for a distance of more than a mile and I could have seen it.\u201d The male defendant did not testify in the trial below.\nThe case was submitted to the jury on the issues of negligence, contributory negligence and damages. The jury answered the negligence issue in the negative, and the plaintiff appeals, assigning error.\nGrady & Clark for plaintiff appellant.\nHester & Hester for defendants, appellees." }, "file_name": "0645-01", "first_page_order": 681, "last_page_order": 683 }