Greene v. Harmon

132 S.E.2d 683, 260 N.C. 344, 1963 N.C. LEXIS 700

• Court: Supreme Court of North Carolina
• Decided: October 16, 1963
• Status: Published

Opinion

Per Curiam.

The appellant assigns as error the failure of the ■court below in its charge to the jury to apply -the law to. the evidence on the substantial features of the case, in that the court failed to charge the jury as to the applicable statutory law with respect to the right of way of the parties ¡at an intersection or as to what would constitute negligence with respect to speed where safety signs had been erected by proper officials. We think this assignment of error was well taken and must be upheld.

An examination of the charge reveals that the court instructed the jury with reispect to negligence according to the common law rule of the -prudent man only.

In Pittman v. Swanson, 255 N.C. 681, 122 S.E. 2d 814, it is said: “Our decisions are as one in holding that the positive duty of the judge, as required by G.S. 1-180, to declare and explain the law arising upon the evidence in the case means that he shall declare and explain the statutory law as well as the common law arising thereon. Barnes v. Teer, 219 N.C. 823, 15 S.E. 2d 379; Kolman v. Silbert, 219 N.C. 134, 12 S.E. 2d 915; Spencer v. Brown, 214 N.C. 114, 198 S.E. 630; Williams v. Coach Co., 197 N.C. 12, 147 S.E. 435; Bowen v. Schnibben, 184 N.C. 248, 114 S.E. 170.”

The appellant ig entitled to a new trial and it is so ordered.

New trial.