Duke v. Meisky

183 S.E.2d 292 (1971)

12 N.C. App. 329

Gladys W. DUKE v. Edward S. MEISKY and Wells Fargo Armored Service Corporation.

No. 7118SC575.

Court of Appeals of North Carolina.

September 15, 1971.

*294 Jordan, Wright, Nichols, Caffrey & Hill by Luke Wright; and Smith & Patterson by Norman B. Smith, Greensboro, for plaintiff appellee.

Sapp & Sapp by Armistead W. Sapp, Jr., Greensboro, for defendant appellants.

PARKER, Judge.

In the record on appeal appellants have grouped three exceptions under the heading "Assignment of Error No. 1," twenty-six exceptions under the heading "Assignment of Error No. 2," and nine exceptions under the heading "Assignment of Error No. 3." While all of these relate to rulings admitting or excluding evidence, in the case of each grouping several distinct and different questions of law are presented. This method of grouping exceptions does not conform with the Rules of Practice in this Court. Rule 19(c) provides that all exceptions relied on shall be grouped and separately numbered. In interpreting its cognate rule, our Supreme Court has held that "[t]his grouping of the exceptions assigned as error (sometimes for brevity also called `assignments of error') should bring together all of the exceptions which present a single question of law." Conrad v. Conrad, 252 N.C. 412, 113 S.E.2d 912. "An assignment of error must present a single question of law for consideration by the court." Dobias v. White, 240 N.C. 680, 83 S.E.2d 785. The purpose of this requirement is to bring into focus the several distinct questions of law which the appellant wishes the appellate court to consider. That purpose is defeated when, as here, appellant jumbles together in the *295 same assignment of error a number of exceptions which undertake to raise quite distinct and different questions of law. It is not enough that all exceptions grouped under a single assignment may present questions in the field of the law of evidence; that field is far too broad to serve as an adequate focusing device for present purposes, as anyone who has glanced at Wigmore can attest.

While appellants' failure to comply with the Rules has made our task more difficult, we have nevertheless carefully considered all of the separate questions raised by the exceptions which appellants have lumped together under each of the headings "Assignment of Error No. 1," "Assignment of Error No. 2," and "Assignment of Error No. 3," and find no prejudicial error. Plaintiff testified that for several years prior to the accident she had had a small lump on her chest and that a few weeks "or maybe a month" after being struck "it started paining me terrifically because it was bruised black," and that "it stayed like that until sometime in December and it started growing like wildfire." Plaintiff's physician, Dr. Lyday, testified from an examination which he made of the plaintiff within two weeks prior to the trial that in such examination he found on plaintiff's breast a "large, bulging tumor mass," "the size at least of a pear," which he diagnosed as cancerous. In response to a hypothetical question, Dr. Lyday testified that in his opinion there was a probability that the blows which plaintiff received in the accident "could cause a growth to enlarge and spread." We find no error in admitting this testimony. Defendants' counsel had stipulated the doctor was an expert physician specializing in the field of general surgery. The hypothetical question called for the doctor's opinion as to whether the growth on plaintiff's body "could or might to a reasonable degree of medical probability have been activated by the blows and bruises" received by plaintiff in the accident. The hypothetical question was in a form which has been approved by our Supreme Court, Stansbury, N.C. Evidence 2d, § 137, and there was evidence from which the jury could find the facts to be as stated in the question. On cross-examination by defendants' counsel, the doctor testified that during the two months he had attended plaintiff while she was in the hospital immediately following the accident, he had not himself observed any bruises on her body in the area of the lump on her chest. This would not, however, preclude the jury from finding that such bruises in fact existed, since plaintiff had so testified. There was, therefore, sufficient evidence to support the jury's finding the facts to be as stated in the hypothetical question. In overruling defendants' objection to the hypothetical question and their motion to strike the doctor's answer, we find no error. We have also carefully considered and find no prejudicial error in the other rulings on evidence as to which appellants complain and which are the subject of the numerous exceptions grouped in their first three assignments of error.

In Assignment of Error No. 4 appellants contend that "[t]he Court erred in not granting defendants' motions for involuntary dismissal of this action at the close of plaintiff's evidence and at the close of all the evidence." Where, as here, a case is tried before a jury, the appropriate motion by which a defendant tests the sufficiency of plaintiff's evidence to permit a recovery is the motion for a directed verdict under Rule 50(a) of the Rules of Civil Procedure. The motion for involuntary dismissal, made under Rule 41(b), performs a similar function in an action tried by the court without a jury. Effective 1 July 1970 our Supreme Court adopted, pursuant to G.S. § 7A-34, "General Rules of Practice for the Superior and District Courts Supplemental to the Rules of Civil Procedure." Rule 6 of these Rules contains the following:

*296 It does not appear from the record before us that defendants complied with Rule 6. It does appear that, at least when their motion was first made at the close of plaintiff's evidence, they misnamed their motion as a motion to dismiss rather than as a motion for a directed verdict. In phrasing their Assignment of Error No. 4, appellants have continued the misnomer. While such imprecision is not to be encouraged, it would appear that the trial judge considered defendants' motions as having been correctly made under Rule 50(a), and we shall do likewise.

There was no error in overruling defendants' motions. Contrary to appellants' contentions, there was ample evidence from which the jury could find that plaintiff was within the marked crosswalk when defendants' truck first hit her. She testified that she walked on the sidewalk on Market Street to the corner, that the sign said "WALK," and that she walked "straight on down." After the accident her body was found lying two or three feet in front of defendants' truck at a point north of the crosswalk, but the rear of the truck was still partially in the crosswalk and one of plaintiff's shoes was found exactly on the northernmost crosswalk line underneath the rear of the truck. The investigating officer testified that defendant driver stated he didn't see the plaintiff and didn't know whether she was in the crosswalk or not. While both the plaintiff and the truck were proceeding under favorable signal lights, this Court has held that under similar circumstances the right of the pedestrian to proceed is superior to that of the turning motorist. Wagoner v. Butcher, 6 N.C.App. 221, 170 S.E.2d 151; Pompey v. Hyder, 9 N.C.App. 30, 175 S.E.2d 319; See: Annotation, 2 A.L.R.3d 155, at page 182. Viewing all the evidence in the light most favorable to the plaintiff, there was ample evidence from which the jury could find that defendant driver was negligent in failing to keep a proper lookout and in failing to yield the right-of-way.

The issue of contributory negligence was properly submitted to the jury. Certainly nothing in the evidence would compel the conclusion that plaintiff was contributorily negligent as a matter of law.

We have carefully examined all of appellants' remaining exceptions and in the trial and judgment appealed from find

No error.

BRITT and MORRIS, JJ., concur.