Dean v. Nash , 12 N.C. App. 661 ( 1971 )

BRITT, Judge.

Six of the assignments of error brought forward and argued in plaintiff’s brief relate to the trial court’s charge to the jury. For errors in the charge, we conclude that plaintiff is entitled to a new trial.

In charging the jury the court made numerous referrals to defendants’ allegation of negligence that plaintiff allowed the pony to move freely about the area, creating a hazard. When the court was charging on the issue of contributory negligence, it stated this contention of defendants twice. Then when the court was charging on defendants’ counterclaim, on the fourth issue, it repeated the contention. We concede that on the issue of contributory negligence and negligence on the counterclaim, it was proper for the court to state legitimate contentions of the defendants. However, when the court was submitting plaintiff’s contentions of negligence of the feme defendant on the first issue, a critical point for plaintiff in the charge, the court twice stated this contention of defendants. Defendants’ contentions that plaintiff failed to maintain adequate fences for containment of the pony and that plaintiff failed to use reasonable care to contain the pony when plaintiff knew of the pony’s propensity to escape its enclosure were not supported by the evidence; therefore, assuming that defendants’ contention that plaintiff allowed the pony to move freely about the area, creating a hazard, was supported by the evidence, it became a key contention for defendants. Under the facts of this case and considering the charge as a whole, we think the court gave unequal stress to this contention in violation of G.S. 1A-1, Rule 51(a). Worrell v. Credit Union, 12 N.C. App. 275, 182 S.E. 2d 874 (1971).

In the portion of its charge concerning the fourth issue, the court used the term contributory negligence in referring to the counterclaim of the male defendant when the actionable negligence of the plaintiff was under consideration. We quote: “Now, I have already instructed you on this first issue what the law is on negligence, and the defendant says and contends that the plaintiff is guilty of contributory negligence as alleged in their counterclaim and are to be considered by you on this fourth issue.” This instruction was confusing and we think erroneous. Although defendants’ allegations of contributory negligence and of negligence on the counterclaim were identical, they obviously served different purposes. The first was to keep plaintiff from recovering in the event the jury should find that the feme defendant was negligent; the other was to allow the male defendant to recover on his counterclaim in the event the jury found no actionable negligence on the part of the feme defendant but did find actionable negligence on the part of plaintiff.

We think there were other errors in the charge but a discussion of them is not necessary. While any one of the errors might not be sufficiently prejudicial within itself to justify a new trial, the cumulative effect of the errors was sufficiently prejudicial to the plaintiff to warrant the granting of a new trial. State v. Frazier, 278 N.C. 458, 180 S.E. 2d 128 (1971) ; State v. Lemmond, 12 N.C. App. 128, 182 S.E. 2d 636 (1971).

Plaintiff also assigns as error the failure of the court to grant his motion for judgment NOV as to the male defendant’s counterclaim. Since plaintiff failed to move for a directed verdict as to the counterclaim at the close of all the evidence, the motion did not meet the requirement of G.S. 1A-1, Rule 50(b) (1) that a motion for judgment NOV be supported by a timely made motion for directed verdict.

New trial.

Judges Morris and Parker concur.