Opinion
No. 748DC801
Filed 18 December 1974
1. Appeal and Error 50 — instructions pertaining to plaintiff's negligence — contributory negligence issue not reached Any defect in the charge in respect to plaintiff's intoxication was immaterial since the jury did not reach the issue of contributory negligence.
2. Automobiles 90 — right of way of pedestrian — failure to charge in initial instructions — subsequent instruction Any error in the court's failure to instruct in the initial charge that a pedestrian has the right of way when crossing a highway at an unmarked crosswalk was cured when the instruction was thereafter given upon request of plaintiff's counsel.
APPEAL by plaintiff from Lanier, Judge, 3 June 1974 Session of Superior Court held in WAYNE County. Heard in Court of Appeals 10 December 1974.
Barnes and Braswell, P.A., by W. Timothy Haithcock, for plaintiff appellant.
Roland C. Braswell, by Roger W. Hall, for defendant appellee.
This is an action brought by decedent's wife as administratrix to recover for his alleged wrongful death. Plaintiff's evidence tended to show that on the night of 18 February 1974, decedent was attempting to cross Highway 70-117 Bypass near its intersection with George Street in Goldsboro when he was struck and killed by an automobile driven by defendant. Decedent was walking from north to south within the bounds of an unmarked crosswalk formed by extending the lines of the George Street sidewalk across the highway. It was about 8:55 p.m. and raining. Two cars approached decedent at speeds of 45 to 50 miles per hour. The first car safely passed decedent. Defendant, driver of the second car, testified that he did not see decedent until he was only 10 to 20 feet away. He swerved sharply to the left but was unable to avoid hitting decedent. He introduced evidence that decedent's blood contained "ethanol 280 milligrams percent" at the time of his death.
The jury found that the defendant was not negligent. From judgment entered for defendant, plaintiff appealed to this Court.
Although plaintiff has violated the rules of this Court by failing to note in the record his exceptions to the charge, we decline to dismiss the appeal on this ground and turn to the assignments of error. See Houston v. Rivens, 22 N.C. App. 423, 206 S.E.2d 739.
Plaintiff first contends that the trial court erred by instructing the jury on the intoxication when the issue had not been properly raised. Any defect in the charge in this respect is immaterial, however, for the jury did not reach the issue of contributory negligence. This assignment of error is therefore without merit.
Plaintiff also contends that the court erred by failing to instruct that a pedestrian has the right-of-way when crossing a highway at an unmarked crosswalk. Such an instruction was omitted from the initial charge, but upon request of plaintiff's counsel the instruction was later given. Any error in omission was thereby corrected.
We have examined the remaining portions of the record and find
No error.
Chief Judge BROCK and Judge MORRIS concur.