Redman v. Nance

243 S.E.2d 920, 36 N.C. App. 383, 1978 N.C. App. LEXIS 2489

Opinion

CLARK, Judge.

The sole question presented by this appeal is whether the trial court erred in submitting the issue of contributory negligence to the jury.

The failure of plaintiff to except to the statement of the trial judge, when made, that out of “an abundance of precaution” he was submitting the contributory negligence issue to the jury, did not constitute a waiver. Carruthers v. R.R., 215 N.C. 675, 2 S.E. 2d 878 (1939). Exceptions to the charge may be noted after trial and included in the appellant’s record on appeal. Corns v. Nickelston, 257 N.C. 277, 125 S.E. 2d 588 (1962); Bank v. Barry, 14 N.C. App. 169, 187 S.E. 2d 478 (1972). The court has the duty to charge the law on the substantial features of the case arising on the evidence and the failure to do so is prejudicial error. Payne v. Lowe, 2 N.C. App. 369, 163 S.E. 2d 74 (1968).

The only evidence from which there could be a possible inference of contributory negligence on the part of the plaintiff is the testimony of the defendant that plaintiff, having stopped before entering the highway, then proceeded forward a few feet and stopped again. But defendant added that he was not looking at plaintiff’s car after it moved forward. Under these circumstances defendant’s testimony relative to the second stop had no probative value as evidence of contributory negligence. Considering the evidence in the light most favorable to defendant, it does not provide evidential support for the defense of contributory negligence, and the trial court erred in submitting this issue to the jury.

The judgment is reversed and the cause remanded for a

New trial.

Judges BRITT and ERWIN concur.