Hunnicutt v. Kimbrell ex rel. Abernathy, 207 N.C. 494 (1934)

Dec. 12, 1934 · Supreme Court of North Carolina

207 N.C. 494

WYLIE HUNNICUTT, Administrator of the Estate of JAMES HUNNICUTT, Deceased, v. JASPER KIMBRELL, by His Guardian Ad Litem, W. H. ABERNATHY, and MRS. MYRA KIMBRELL.

(Filed 12 December, 1934.)

Appeal and Error J e: Automobiles C i—

The charge of the court on the question of defendant’s contributory negligence upon evidence tending to show that defendant was walking along the highway on the right side thereof in violation of a State Highway ordinance is not held for reversible error for its failure to contain a precise definition of contributory negligence.

Civil ACTION, before Shaw, Emergency J., at April, 1934, Special Term, of MeCKLENbubg.

Tbe evidence tended to sbow tbat tbe deceased, James Hunnicutt, on or about 28 January, 1933, was walking on tbe rigbt-band side of tbe highway, and tbat an automobile driven by Jasper Elimbrell and owned by bis mother, Myra Kimbrell, approached tbe deceased, traveling in tbe same direction. Tbe plaintiff alleged tbat tbe car driven by Jasper Kimbrell, who was a minor, was a family car, and tbat be was operating it in a reckless and negligent manner, without keeping a proper lookout and driving at an unlawful rate of speed, and tbat as a result be negligently struck and killed James Hunnicutt. Tbe defendant alleged tbat tbe deceased was walking on tbe wrong side of tbe road in violation of an ordinance duly adopted by tbe Highway Commission requiring pedestrians to walk on tbe left-hand side of tbe highway, and tbat as tbe car approached plaintiff’s intestate be suddenly stepped in front of tbe car, and tbat bis injury And death was proximately caused by bis own negligence.

Issues of negligence, contributory negligence, and damages were submitted to tbe jury. Tbe verdict declared tbat tbe defendant was guilty of negligence, and tbat plaintiff’s intestate also by bis own negligence contributed to bis injury and death. Judgment was entered upon tbe verdict tbat tbe plaintiff take nothing by bis action, and tbe plaintiff appealed.

Carswell & Ervin for plaintiff.

Ralph V. Kidd for defendants.

Pee Cubiam.

Tbe assignments of error are based upon tbe charge of tbe trial judge in failing to fully explain to tbe jury tbe applicable principles of law.

Tbe judge defined negligence and proximate cause. While be did not give a formal definition of contributory negligence, be instructed tbe jury: “If plaintiff’s intestate was walking on tbe rigbt-band side of tbe road, as claimed by tbe defendant, be was violating tbe-law, and tbat would be negligence on bis part, and if sueb negligence was tbe proximate cause of bis injury and death, tbat would be contributory negligence upon bis part, and bis administrator would not be entitled to recover.”

While tbe charge may be lacking in precise definition, nevertheless tbe case in all essential features involves a simple issue of fact. An examination of tbe charge in its entirety fails to produce tbe conclusion tbat there is reversible error warranting tbe overthrow of tbe judgment.

Affirmed.