Black v. Weaver

Court of Appeals of North Carolina

Black v. Weaver

178 S.E.2d 643, 10 N.C. App. 380, 1971 N.C. App. LEXIS 1639

CourtCourt of Appeals of North Carolina

DecidedFebruary 3, 1971

DocketNo. 7121SC26

StatusPublished

This text of 178 S.E.2d 643 (Black v. Weaver) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Black v. Weaver, 178 S.E.2d 643, 10 N.C. App. 380, 1971 N.C. App. LEXIS 1639 (N.C. Ct. App. 1971).

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Opinion

GRAHAM, Judge.

Plaintiff excepts to the following portion of the court’s charge to the jury:

“The Court charges you that if you are satisfied from the evidence and by its greater weight that the plaintiff on this occasion under all these circumstances had opportunity to see that there was real danger in the manner in which the defendant was operating this Jeep on this' occasion, that there was real danger in it, if you are satisfied from the evidence and by its greater weight that he had opportunity to see that and still failed to make some effort to stop it and to get off the Jeep or to get the operation in line with what would be reasonable and prudent, then the Court charges you that that would amount to negligence; . .

This exception is well taken. In this portion of the charge the jury was instructed, in effect, that if plaintiff realized there was danger in the manner the Jeep was being operated and failed to take any of the enumerated actions, his failure to so act would constitute negligence per se. Whether it would in fact constitute negligence was for the jury to determine under the rule of the ordinary prudent man. Dinkins v. Carlton and Williams v. Carlton, 255 N.C. 137, 120 S.E. 2d 543. In Beam v. Parham, 263 N.C. 417, 139 S.E. 2d 712, we find the following:

“It is not the duty of a guest, under all circumstances of negligent or reckless driving, to ask to be allowed to leave the vehicle. A guest who feels endangered by the manner in which a car is operated cannot ordinarily be expected to leap therefrom while it is in motion. A passenger is required to use that care for his own safety that a reasonably prudent person would employ under the same or similar circumstances. Whether he has measured up to this standard is ordinarily a question for the jury. Bell v. Maxwell, 246 N.C. 257, 98 S.E. 2d 33; Samuels v. Bowers, supra; King v. Pope, 202 N.C. 554, 163 S.E. 447.”

There was plenary evidence to support a finding by a jury, under proper instructions, that plaintiff’s own negligence was a proximate cause of his injuries. However, we find that under the instructions given, the question of whether plaintiff’s failure to take precautionary actions for his own safety constituted neg[382]*382ligence, under the circumstances, was not left for the jury to determine. This was prejudicial error requiring a new trial.

New trial.

Chief Judge Mallard and Judge Parker concur.

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GRAHAM, Judge.

Plaintiff excepts to the following portion of the court’s charge to the jury:

“The Court charges you that if you are satisfied from the evidence and by its greater weight that the plaintiff on this occasion under all these circumstances had opportunity to see that there was real danger in the manner in which the defendant was operating this Jeep on this' occasion, that there was real danger in it, if you are satisfied from the evidence and by its greater weight that he had opportunity to see that and still failed to make some effort to stop it and to get off the Jeep or to get the operation in line with what would be reasonable and prudent, then the Court charges you that that would amount to negligence; . .

This exception is well taken. In this portion of the charge the jury was instructed, in effect, that if plaintiff realized there was danger in the manner the Jeep was being operated and failed to take any of the enumerated actions, his failure to so act would constitute negligence per se. Whether it would in fact constitute negligence was for the jury to determine under the rule of the ordinary prudent man. Dinkins v. Carlton and Williams v. Carlton, 255 N.C. 137, 120 S.E. 2d 543. In Beam v. Parham, 263 N.C. 417, 139 S.E. 2d 712, we find the following:

“It is not the duty of a guest, under all circumstances of negligent or reckless driving, to ask to be allowed to leave the vehicle. A guest who feels endangered by the manner in which a car is operated cannot ordinarily be expected to leap therefrom while it is in motion. A passenger is required to use that care for his own safety that a reasonably prudent person would employ under the same or similar circumstances. Whether he has measured up to this standard is ordinarily a question for the jury. Bell v. Maxwell, 246 N.C. 257, 98 S.E. 2d 33; Samuels v. Bowers, supra; King v. Pope, 202 N.C. 554, 163 S.E. 447.”

There was plenary evidence to support a finding by a jury, under proper instructions, that plaintiff’s own negligence was a proximate cause of his injuries. However, we find that under the instructions given, the question of whether plaintiff’s failure to take precautionary actions for his own safety constituted neg[382]*382ligence, under the circumstances, was not left for the jury to determine. This was prejudicial error requiring a new trial.

New trial.

Chief Judge Mallard and Judge Parker concur.

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Bluebook (online)

178 S.E.2d 643, 10 N.C. App. 380, 1971 N.C. App. LEXIS 1639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/black-v-weaver-ncctapp-1971.

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