Stephens v. . Johnson

1 S.E.2d 367, 215 N.C. 133, 1939 N.C. LEXIS 218

Opinion

Stacy, C. J.

Tbe following special instruction, given at tbe request of tbe plaintiff, forms tbe basis of one of defendant’s exceptive assignments of error:

“That if the driver of tbe Johnson car saw tbe Stephens truck approaching tbe intersection at a high or improper rate of speed, and notwithstanding this fact continued on into the intersection in an attempt to cross said highway ahead of tbe Stephens truck, such action on the part of tbe driver of the Johnson car would constitute negligence.”

This instruction runs counter to tbe statute, cb. 407, Public Laws 1937, sec. 120, and is at variance with what was said in Sebastian v. Motor Lines, 213 N. C., 770, 197 S. E., 539. Eeference to the Sebastian case will suffice to make clear the error. It is also observed that tbe instruction omits any reference to proximate cause. Hurt v. Power Co., 194 N. C., 696, 140 S. E., 730.

For the error as indicated, a new trial must be awarded. It is so ordered.

New trial.