Jernigan v. Jernigan

Annotate this Case

78 S.E.2d 179 (1953)

238 N.C. 444

JERNIGAN v. JERNIGAN.

No. 237.

Supreme Court of North Carolina.

October 21, 1953.

*180 J. R. Barefoot, Benson, and E. R. Temple, Smithfield, for plaintiff, appellee.

A. M. Noble, Smithfield, for defendant, appellant.

ERVIN, Justice.

The defendant makes these assertions by his assignments of error:

1. The court erred in refusing to dismiss the action upon a compulsory nonsuit at the close of all the evidence.

2. The court erred in permitting the plaintiff to testify that subsequent to the accident the defendant admitted he could have avoided the collision with the Capps car in several ways.

Counsel for the defendant lays great stress on his contention that the action ought to have been involuntarily nonsuited in the superior court. We are compelled to hold, however, that this question is foreclosed against the defendant by the decision on the former appeal adjudging the plaintiff's evidence sufficient to carry the case to the jury and to support a verdict in her favor. This is true for the very simple reason that the evidence adduced by the plaintiff at the second trial is substantially the same as that presented by her at the first trial and considered by us on the former appeal. Mintz v. Atlantic Coast Line R. R., 236 N.C. 109, 72 S.E.2d 38; Maddox v. Brown, 233 N.C. 519, 64 S.E.2d 864; Randle v. Grady, 228 N.C. 159, 45 S.E.2d 35; Pinnix v. Griffin, 221 N.C. 348, 20 S.E.2d 366, 141 A.L.R. 1164; Wall v. Asheville, 220 N.C. 38, 16 S.E.2d 397; Simpson v. American Oil Co., 219 N.C. 595, 14 S.E.2d 638; McGraw v. Southern R. Co., 209 N.C. 432, 184 S.E. 31; Dixson v. C. E. Johnson Realty Co., 209 N.C. 354, 183 S.E. 382; Groome v. Statesville, 208 N.C. 815, 182 S.E. 657; Masten v. Texas Co., 204 N.C. 569, 169 S.E. 158; Madrin v. Norfolk Southern R. R., 203 N.C. 245, 165 S.E. 711; Newbern v. Western Union Telegraph Co., 196 N.C. 14, 144 S.E. 375; McCall v. Textile Industrial Institute, 189 N.C. 775, 128 S.E. 349; Soles v. Atlantic Coast Line R. R., 188 N.C. 825, 125 S.E. 24; Clark v. Sweaney, 176 N.C. 529, 97 S.E. 474. In ruling on the motion to nonsuit, the trial judge properly disregarded the evidence of the defendant contradictory to that supporting the plaintiff's contention. Hansley v. Tilton, 234 N.C. 3, 65 S.E.2d 300.

The defendant objects to the receipt of his extrajudicial declaration that he could have avoided striking the Capps car in several ways on the theory that such declaration expresses a mere opinion or conclusion, and for that reason falls within the condemnation of the general rule excluding opinions or conclusions. Royal Insurance Co. v. Atlantic Coast Line R. R., 195 N.C. 693, 143 S.E. 516. This position is untenable. The declaration can be reasonably interpreted to be a shorthand statement of fact based on the personal knowledge of the defendant. This being so, the trial judge rightly received the declaration in evidence as an admission against the interest of the defendant on the issue of liability. Hobbs v. Queen City Coach Co., 225 N.C. 323, 34 S.E.2d 211; Brown v. Wood, 201 N.C. 309, 160 S.E. 281; Stansbury: North Carolina Evidence, section 167; Michie: The Law of Automobiles in North Carolina, section 253; 31 C.J.S., Evidence, ยง 272.

Since no error is shown, the judgment entered in the superior court will be sustained.

No error.