LOUISE BRYAN PRESSLEY v. WILSON GODFREY, 263 N.C. 82

PeR Cueiam. Defendant assigns as error the nonsuit of his counterclaim and makes seventeen specific exceptions to the charge. The factual accounts of the respective parties as to how the accident occurred are conflicting on all material points. Plaintiff’s evidence makes out a prima jade case of actionable negligence against defendant, and defendant's evidence entitles him to go to the jury on his counterclaim. On this record neither is guilty of contributory negligence as a matter of law.

Both parties were entitled to have the jury consider their respective theories of the case, insofar as the evidence offered by them supports their allegations. Notwithstanding the nonsuit of the counterclaim, the court submitted an issue as to the contributory negligence of plaintiff, and defendant was entitled to have his theory of the case presented on this issue and also on the negligence (first) issue as opposed to plaintiff’s theory. Chambers v. Allen, 233 N.C. 195, 63 S.E. 2d 212. The court did not state the evidence except in giving the contention of the parties. Bulluck v.

Long, 256 N.C. 577, 124 S.E. 2d 716. In about 12 pages of the record, the court fully defined and explained the principles of law arising on plaintiff’s allegations and gave in much detail plaintiff’s contentions with respect thereto. Parenthetically, we observe that the charge deals at length with the duty of a motorist to stop in obedience to a “Stop” sign. There is no evidence in the record that defendant did not stop before entering the Boulevard; he testified that he did stop. See Dunlap v. Lee, 257 N.C. 447, 126 S.E. 2d 62.

With respect to defendant’s factual and legal version of the case, the court read to the jury an excerpt from Primm v. King, 249 N.C. 228, 106 S.E. 2d 223, and later in the charge on the first issue gave (in about two pages of the record) general contentions of defendant, answering plaintiff’s contentions with respect to defendant’s conduct. Defendant’s contentions, with respect to the alleged negligent conduct of plaintiff are merely listed in about one-third of a page of the record. The evidence, of defendant as to how the accident occurred is about equal in length-to that .of plaintiff.

There is a glaring inequality in the stress given the contentions of the parties. Brannon v. Ellis, 240 N.C. 81, 81 S.E. 2d 196.

With respect to the contributory negligence (second) issue, the court said: “The court will not repeat the evidence or contentions of the parties on the second issue because each makes the same contentions as to the other on the second issue that they do on the first ...” The court merely submitted the issue to the jury for answer, explaining that plaintiff would be entitled to • recover only if the answer to the first issue was “Yes” and the answer to the second issue “No.” See Therrell v. Freeman, 256 N.C. 552, 124 S.E. 2d 522. The court erred in nonsuiting defendant’s counterclaim.

There are many prejudicial errors in the charge. New trial.