{ "id": 8573300, "name": "DARWIN JACOB DENNIS v. RONNIE VONCANNON", "name_abbreviation": "Dennis v. Voncannon", "decision_date": "1968-01-12", "docket_number": "", "first_page": "446", "last_page": "452", "citations": [ { "type": "official", "cite": "272 N.C. 446" } ], "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": "114 S.E. 2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "368" } ], "opinion_index": 0 }, { "cite": "252 N.C. 574", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624605 ], "pin_cites": [ { "page": "578" } ], "opinion_index": 0, "case_paths": [ "/nc/252/0574-01" ] }, { "cite": "102 S.E. 2d 846", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "851" } ], "opinion_index": 0 }, { "cite": "248 N.C. 161", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621116 ], "pin_cites": [ { "page": "168" } ], "opinion_index": 0, "case_paths": [ "/nc/248/0161-01" ] }, { "cite": "148 S.E. 2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "267 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559357 ], "opinion_index": 0, "case_paths": [ "/nc/267/0375-01" ] }, { "cite": "154 S.E. 2d 468", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "471" } ], "opinion_index": 0 }, { "cite": "270 N.C. 367", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568092 ], "pin_cites": [ { "page": "372" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0367-01" ] }, { "cite": "76 S.E. 2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "238 N.C. 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598575 ], "pin_cites": [ { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0042-01" ] } ], "analysis": { "cardinality": 623, "char_count": 16637, "ocr_confidence": 0.556, "pagerank": { "raw": 8.450939538289923e-08, "percentile": 0.48489274857337245 }, "sha256": "02205e03b1f2ac02c9103f8b035dc2816c29c727e716be831e11f618ad33928d", "simhash": "1:fee6dc8452151700", "word_count": 2739 }, "last_updated": "2023-07-14T21:31:35.058336+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DARWIN JACOB DENNIS v. RONNIE VONCANNON." ], "opinions": [ { "text": "Bobbitt, J.\nWe consider first whether plaintiff\u2019s action should have been nonsuited.\nPlaintiff\u2019s evidence, in accord with his allegations, tends to show plaintiff\u2019s Volkswagen, with headlights dim, was moving slowly in a southerly direction, entirely on the east shoulder, one wheel on the paved portion of the shoulder and the other on the sod portion thereof, when defendant, who had been driving his truck in the lane for northbound traffic, turned to his right onto the east shoulder and there collided with plaintiff\u2019s Volkswagen; and that, when defendant turned from his traffic lane onto the east shoulder, no other traffic was then using either of the two traffic lanes.\nIn our view, this evidence, when considered in the light most favorable to plaintiff, was sufficient to support a finding that defendant was actionably negligent as alleged in the complaint.\nThe record shows the court, in allowing defendant\u2019s motion to nonsuit plaintiff\u2019s action, held \u201cas a matter of law that the plaintiff is guilty of contributory negligence.\u201d\nG.S. 1-139 provides: \u201cIn all actions to recover damages by reason of the negligence of the defendant, where contributory negligence is relied upon as a defense, it must be set up in the answer and proved on the trial.\u201d As stated by Ervin, J., in Hunt v. Wooten, 238 N.C. 42, 49, 76 S.E. 2d 326, 331: \u201cThe def\u00e9ndant must meet the two requirements of this statute to obtain the benefit of the affirmative defense of contributory negligence. The first requirement is that the defendant must specially plead in his answer an act or omission of the plaintiff constituting contributory negligence in law; and the second requirement is that the defendant must prove on the trial the act or omission of the plaintiff so pleaded.\u201d\nRecently, Lake, J., in Jackson v. McBride, 270 N.C. 367, 372, 154 S.E. 2d 468, 471, speaking for this Court, said: \u201cContributory negligence, as its name implies, is negligence on the part of the plaintiff which joins, simultaneously or successively, with the negligence of the defendant alleged in the complaint to produce the injury of which the plaintiff complains. It does not negate negligence of the defendant as alleged in the complaint, but presupposes or concedes such negligence by him. Contributory negligence by the plaintiff \u2018can exist only as a co-ordinate or counterpart\u2019 of negligence by the defendant as alleged in the complaint.\u201d\nThe factual situation on which defendant bases his plea of contributory negligence and the factual situation on which plaintiff bases his allegations as to defendant\u2019s actionable negligence are irreconcilably different. In plaintiff\u2019s action, the first issue raised by the pleadings was whether plaintiff was injured and his property damaged by the negligence of defendant os alleged in the complaint. Defendant alleges plaintiff was contributorily negligent in that the Volkswagen, while proceeding in the lane for southbound traffic, out to its left across the center line and across the lane for northbound traffic, striking defendant\u2019s truck as it was attempting to evade the Volkswagen by pulling onto the east shoulder. Defendant\u2019s evidence, if accepted, would negate plaintiff\u2019s allegations and require that the first issue be answered, \u201cNo.\u201d If this first issue were answered, \u201cYes,\u201d such answer would establish that plaintiff was injured and damaged in the way and manner alleged in the complaint; and such answer would in turn negate the allegations on which defendant bases his plea of contributory negligence. In the factual situation here considered, as in Jackson v. McBride, supra, there was no basis for the submission of a contributory negligence issue in respect of plaintiff\u2019s action. Under these circumstances, it is manifest the ruling of the court in granting nonsuit on the ground plaintiff was guilty of contributory negligence as a matter of law was erroneous.\nIn the trial of plaintiff\u2019s action, if the jury should find that plaintiff was injured and his property damaged by the negligence of defendant as alleged in the complaint, such finding would preclude defendant from recovery on his cross action. Nicholson v. Dean, 267 N.C. 375, 148 S.E. 2d 247. The jury would not reach the issues in defendant\u2019s cross action unless it answered, \u201cNo,\u201d the issue as to whether plaintiff was injured and his property damaged by the negligence of defendant as alleged in the complaint. If and when the cross action is reached, there would seem to be no basis for submission of a contributory negligence issue.\nThe foregoing requires reversal of the nonsuit of plaintiff\u2019s action. Error in this respect, on account of the interrelation of plaintiff\u2019s action and defendant\u2019s cross action, would seem sufficient to require that there be a new trial of defendant\u2019s cross action. Be that as it may, the error in the charge discussed below requires that such new trial be awarded.\nThe issu\u00e9s submitted to and answered by the jury relate solely to defendant\u2019s cross action. The first of these issues was as follows: \u201cWas the defendant injured and damaged by the negligence of the plaintiff, as alleged-dn the answer?\u201d (Our italics.) With reference thereto, the court instructed the jury as follows: \u201cI charge you on this first issue that if you find the facts to be as the evidence tends to show, and believe the testimony of.these witnesses; that is, if you find that the plaintiff, operated his motor vehicle at nighttime proceeding in a southerly direction with one wheel on the east side of the highway, facing traffic going north, and one wheel was on the pavement just east of the line designating the lanes of traffic; or if you find that the plaintiff drove his car across the center line for traffic and over into the northbound lane and then over off of the road where the defendant contends he had pulled over, and that the cars collided there in that manner, if you find that the plaintiff failed to exercise due care in that respect; or if you find that he failed to keep a proper lookout, or if you find that he failed to keep his car under proper control, or drove his car across the center line, or drove his car some two hundred feet facing traffic, with one wheel on the pavement; if you believe the testimony of the witnesses and find the facts to be as the evidence tends to show, it would be your duty to answer the first issue, Yes. That is, that the defendant was injured and damaged by the negligence of the' plaintiff, as alleged in the answer.\u201d (Our italics.)\nImmediately following the quoted portion of the charge, to which plaintiff excepted, the court instructed the jury as follows: \u201cNow, if you fail to so find, or if you don\u2019t believe the testimony of the witnesses, it will , be your duty to answer the first issue, \u2018No.\u2019 That is, that the defendant was not injured and damaged by the negligence of the plaintiff, as alleged in the answer.\u201d (Our italics.)\nThe portions of the challenged instruction, (1) \u201cif you find the facts to be as the evidence tends to show, and believe the testimony of these witnesses,\u201d and (2) \u201cif you believe the testimony of the witnesses and find the facts to be as the evidence tends to show,\u201d are in words and phrases appropriate to a peremptory instruction. 2 McIntosh, North Carolina Practice and Procedure, Second-Edition, \u00a7 1516, 1964 pocket parts (Phillips). \u201cThe rule is that where the evidence bearing upon an issue is susceptible of diverse inferences, it is improper for the presiding judge to give the jury a peremptory instruction.\u201d Gouldin v. Insurance Co., 248 N.C. 161, 168, 102 S.E. 2d 846, 851. Here, the evidence for plaintiff and the evidence for defendant is in direct conflict.\nIt is noted that the portions of the instruction quoted in the preceding paragraph refer to \u201cthese witnesses\u201d and \u201cthe witnesses.\u201d Presumably, the reference is to all witnesses. No distinction is made between plaintiff\u2019s and defendant\u2019s witnesses. Moreover, no distinction is made between what plaintiff\u2019s evidence tends to show and what defendant\u2019s evidence tends to show.\nThe instruction includes, as a basis for an affirmative answer to the first issue, factual predicates, e.g., \u201cif you find that the plaintiff, operated his motor vehicle at nighttime proceeding in a southerly direction with one wheel on the east side of the highway, facing traffic going north, and one wheel on the pavement just east of the line designating the lanes of traffic,\u201d or if you find that plaintiff \u201cdrove his car some two hundred feet facing traffic, with one wheel on the pavement,\u201d which are neither alleged by defendant nor supported by his evidence.\nThese legal principles are applicable: (1) Defendant must make out his cross action secundum allegata. 3 Strong, N. C. Index, Pleadings \u00a7 28. (2) An instruction relating to a factual situation of which there is no evidence is erroneous. McGinnis v. Robinson, 252 N.C. 574, 578, 114 S.E. 2d 365, 368, and cases cited.\nIn the respects indicated, the challenged portions of the charge are erroneous and deemed sufficiently prejudicial to entitle plaintiff to a new trial.\nRe plaintiff's action: Judgment of nonsuit reversed.\nRe defendant\u2019s action: New trial.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Hugh B. Anderson and John Randolph Ingram, for plaintiff appellant.", "Dock G. Smith, Jr. and Miller, Beck & O\u2019Briant for defendant appellee." ], "corrections": "", "head_matter": "DARWIN JACOB DENNIS v. RONNIE VONCANNON.\n(Filed 12 January, 1968.)\n1. Negligence \u00a7 11\u2014\nWhere defendant relies upon contributory negligence, be is required specifically to plead in bis answer the acts and omissions of plaintiff relied upon as constituting contributory negligence and to prove them at the trial. G.S. 1-139.\n2. Same\u2014\nContributory negligence is negligence on the part of plaintiff which concurs with the negligence of the defendant as alleged in the complaint, and contributory negligence does not negate negligence as alleged in the complaint but presupposes the existence of such negligence.\n3. Automobiles \u00a7 43\u2014 Answer negating allegations of complaint fails to raise issue of contributory negligence.\nPlaintiff\u2019s allegations were to the effect that he was driving in a southerly direction entirely on the shoulder of the northbound traffic lane when defendant\u2019s truck traveling in the northbound lane suddenly cut to the right and struck plaintiff\u2019s car. Defendant alleged in the answer that he was proceeding north in the righthand lane and that plaintiff was proceeding south in the opposite lane when plaintiff suddenly turned to his left, crossed the center line and into plaintiff\u2019s lane and struck defendant\u2019s truck on the shoulder of the northbound lane. Seld,: The answer is insufficient to support a finding of contributory negligence as a matter of law, since it does not allege any negligence on the part of plaintiff concurring with the negligence of defendant as alleged in the complaint.\n4. Automobiles \u00a7 53\u2014\nPlaintiff\u2019s evidence tended to show that he was delivering newspapers in his automobile on the east side of a highway running in a north-south direction and that he was driving slowly in a southerly direction, entirely on the shoulder of the northbound lane, and that defendant\u2019s truck proceeding north in the northbound lane suddenly cut to the right and collided headon with plaintiff\u2019s car on the shoulder of the road. Held: Plaintiff\u2019s evidence was sufficient to go to the jury on the issue of defendant\u2019s negligence in causing the collision.\n5. Trial \u00a7 31\u2014\nAn instruction that the jury should answer an issue in a specified way if the jury should find the facts to be as the evidence tends to show is a peremptory instruction, and such instruction is improperly given where the evidence bearing on the issue is in conflict.\n6. Pleadings \u00a7 28\u2014\nDefendant must make out his cross action secundum allegata.\n7. Trial \u00a7 33\u2014\nAn instruction to the jury relating to a factual situation of which there is no evidence is erroneous.\nAppeal by plaintiff from McConnell, 3., April 3, 1967 Civil Session of Randolph.\nAction and cross action growing out of a collision in Randolph County, N. C., at a point on U. S. Highway 220 between Asheboro and Seagrove, on November 25, 1966, between 5 and 6 a.m., involving a 1966 Volkswagen, owned and operated by plaintiff, and a 1959 Ford pickup truck, owned and operated by defendant.\nThe highway runs generally north-south. A paved portion, 24 feet wide, is divided into two lanes, the east lane for northbound traffic and the west for southbound traffic. The two lanes are divided by a broken white center line;, and, in the area where the collision occurred, there was a solid yellow line along and on each side of said center line.\nAlong the east and west edges of said 24-foot paved portion constituting the traffic lanes, solid white lines separate the lanes for northbound and southbound traffic, respectively, from the east and west shoulders of the highway. The east shoulder, pertinent to this appeal, is fourteen feet wide, of which the five or six feet immediately adjoining the east line of the lane for northbound traffic is paved, and the remaining portion is sod.\nThe highway is \u201csubstantially level and curves slightly to the west\u201d a short distance north of the scene of collision.\nThe weather was clear, the road was dry. It was dark, \u201cnecessitating the use of headlights.\u201d\nPlaintiff's action and defendant\u2019s cross action are to recover for personal injuries and property damage, each alleging the negligence of the other was the sole proximate cause of the collision and its consequences.\nIn respect of plaintiff\u2019s action, the pleadings consist of the complaint and defendant\u2019s answer thereto, which includes a plea of contributory negligence. In respect of defendant\u2019s cross action, the pleadings consist of defendant\u2019s cross complaint and plaintiff\u2019s reply thereto, which includes a plea treated by the court below as a plea of contributory negligence.\nEvidence was offered by plaintiff and by defendant.\nThe factual situation described in plaintiff\u2019s allegations and evidence is as follows: Plaintiff was delivering newspapers in a rural section. He had delivered a paper to a customer whose box was on the east side of the highway. After depositing a paper in this box, he drove his Volkswagen, slowly, in a southerly direction on and along the east shoulder, partly on the paved portion thereof and partly on the sod portion thereof, a distance of approximately 250 feet en route to the box where he would next deliver a paper. Defendant\u2019s truck, with bright lights burning, which had been proceeding north in the lane for northbound traffic, suddenly \u201ccut to the right,\u201d colliding \u201cpartially head-on\u201d with plaintiff\u2019s Volkswagen on said east shoulder. Plaintiff alleged this factual situation as the basis for the cause of action alleged in the complaint and also as the basis for the affirmative plea asserted in his reply.\nThe factual situation described in defendant\u2019s allegations and evidence is as follows: Defendant was proceeding north in the lane for northbound traffic. Plaintiff was proceeding south in the lane for southbound traffic. When the vehicles were approximately 200 feet apart, plaintiff turned to his left, crossing the center line and into defendant\u2019s traffic lane, at an angle of approximately 45\u00b0. Defendant applied his brakes, cut to his right onto the east shoulder and had almost stopped when the left front of defendant\u2019s truck, which was then on the east shoulder, was struck by the front of the Volkswagen, the front portion of which was then on the east shoulder and the back portion in the lane for northbound traffic. Defendant alleged this factual situation as the basis of his plea of contributory negligence in respect of plaintiff\u2019s action and also as the basis for the cross action alleged in his cross complaint.\nAt the conclusion of all the evidence, the court, allowing defendant\u2019s motion therefor, entered judgment of involuntary nonsuit as to plaintiff\u2019s action.\nWith reference to defendant\u2019s cross action, the court submitted and the jury answered the following issues: \u201c1. Was the defendant injured and damaged by the negligence of the plaintiff, as alleged in the answer? AnsweR: Yes. 2. If so, did the defendant, by his own negligence, contribute to his injuries and damages? ANSWER: No. 3. What amount, if any, is the defendant entitled to recover of the plaintiff for: (A) His personal injuries? Answer: $2,500. (R) Property damages? Answer: $800.00.\u201d\nJudgment for defendant in accordance with the verdict was entered. Plaintiff appealed, assigning as error (1) the judgment non-suiting his action, and (2) errors in the trial with reference to defendant\u2019s cross action.\nHugh B. Anderson and John Randolph Ingram, for plaintiff appellant.\nDock G. Smith, Jr. and Miller, Beck & O\u2019Briant for defendant appellee." }, "file_name": "0446-01", "first_page_order": 482, "last_page_order": 488 }