Daniels v. Jones , 42 N.C. App. 555 ( 1979 )

MORRIS, Chief Judge.

Plaintiff brings forward on appeal two assignments of error addressed to the trial court’s instructions to the jury concerning the issue of contributory negligence. First, he argues that the trial court committed reversible error in failing to instruct the jury with respect to plaintiff’s contention that, when he entered as a passenger the truck being driven by defendant, he had no reasonable grounds for believing that defendant was intoxicated. Second, plaintiff assigns error to the failure of the trial judge to instruct the jury that plaintiff contended that before the collision he had protested with defendant concerning the manner in which he was driving the truck. We will address assignments of error together.

The principles of review of a trial court’s instructions with respect to the contentions of the parties to a lawsuit are well established. In the first place, the trial court-is not required to state the contentions of the parties. In re Will of West, 227 N.C. 204, 41 S.E. 2d 838 (1947) (decided under predecessor G.S. 1-180). However, when he does so he must give equal stress to the contentions of each party. G.S. 1A-1, Rule 51(a); Watt v. Crews, 261 N.C. 143, 134 S.E. 2d 199 (1964) (applying “old” G.S. 1-180); Comer v. Cain, 8 N.C. App. 670, 175 S.E. 2d 337 (1970) (applying “new” G.S. 1A-1, Rule 51(a)). Nevertheless, the trial court’s duty to give equal stress to the contentions of each party does not require that each statement must be of equal length so long as each party’s contentions receive equal emphasis. Comer v. Cain, id.

The focus of our inquiry is upon the trial court’s treatment of the contributory negligence issue. The contentions concerning this issue were handled similarly to those concerning the first issue: defendant’s negligence. The court first explained the concept of negligence and then stated, “the plaintiff contends, and the defendant denies, that the defendant, Eddie Howard Jones, was negligent in one or more of the following respects”. The court thereafter enumerated plaintiff’s contentions gleaned from the pleadings and evidence concerning defendant’s primary negligence. The court also explained the duty of care relevant to each of plaintiff’s contentions. Thereafter, on the second issue, the trial court addressed defendant’s contentions. The court, after explaining the concept of contributory negligence, stated, “the defendant contends, and the plaintiff denies, that the plaintiff was negligent in one or more of the following respects”. The court then summarized defendant’s contentions that plaintiff rode with defendant while he knew or should have known that defendant was driving while intoxicated, and that plaintiff failed at any time to protest the manner in which defendant was operating the vehicle. He did not give any contentions of plaintiff on the second issue.

In our opinion, the trial court failed to give equal stress to the primary contentions of the parties as required by G.S. 1A-1, Rule 51(a), and the relevant case law. Upon a cursory review of the record, it first appears that the trial court equally stressed plaintiff’s contentions with respect to the first issue and defendant’s contentions with respect to issue two. However, under the peculiar posture of this case, this did not satisfy the mandate of the statute. It became apparent as the trial progressed that defendant had conceded negligence and had focused his defense on the issue of contributory negligence. Defendant’s theory was to so clearly establish his own intoxication and negligence that the jury would conclude that plaintiff was negligent and assumed the risk by entering, and continuing to ride in, the truck being driven by defendant. Defendant’s defense was based partially upon the theory that a passenger who voluntarily enters an automobile with knowledge that the driver is intoxicated is guilty of contributory negligence per se. See Atwood v. Holland, 267 N.C. 722, 148 S.E. 2d 851 (1966); Bank v. Lindsey, 264 N.C. 585, 142 S.E. 2d 357 (1965); Davis v. Rigsby, 261 N.C. 684, 136 S.E. 2d 33 (1964). Defendant also relies on the alleged failure of plaintiff to remonstrate with the driver concerning his negligent control of the truck. See Beam v. Parham, 263 N.C. 417, 139 S.E. 2d 712 (1965); Mason v. Johnston, 215 N.C. 95, 1 S.E. 2d 379 (1939).

With the case in this posture, in our opinion, it was necessary for the trial court, after having stated defendant’s contentions, to state plaintiff’s contentions with respect to the second issue concerning contributory negligence. See Watt v. Crews, supra. At a minimum, the trial court should have stated that plaintiff contended (1) defendant was not noticeably under the influence of alcohol when they entered the truck, and that (2) when defendant’s reckless driving became apparent to plaintiff, he did in fact remonstrate as best he could under the circumstances. In order effectively to give equal stress to the contentions of the parties, those contentions of a party which are summarized must be relevant to the decisive issues which develop at trial.

New trial.

Judges PARKER and MARTIN (Harry C.) concur.