Gibson v. Whitton

Annotate this Case

79 S.E.2d 196 (1953)

239 N.C. 11


No. 531.

Supreme Court of North Carolina.

December 16, 1953.

*199 Helms & Mulliss, John D. Hicks, and Cochran McCleneghan & Miller, Charlotte, for defendant-appellant.

Francis H. Fairley, William H. Booe, and Robinson & Jones, Charlotte, for plaintiff-appellee.

JOHNSON, Justice.

The defendant urges that his motion for judgment as of nonsuit should have been allowed upon the ground that the plaintiff's evidence establishes contributory negligence as a matter of law.

Contributory negligence is an affirmative defense which must be pleaded and proved. G.S. ยง 1-139. Even so, nonsuit is proper when the plaintiff's own evidence *200 establishes this defense, Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307, but it may not be entered when it is necessary to rely in whole or in part upon the defendant's evidence, or when diverse inferences upon the question are reasonably deducible from plaintiff's evidence, the rule being that a motion for nonsuit on the ground of contributory negligence will be allowed only when the plaintiff's evidence is so clear that no other reasonable inference is deducible therefrom. Bundy v. Powell, supra; Beck v. Hooks, 218 N.C. 105, 10 S.E.2d 608. See also Mikeal v. Pendleton, 237 N.C. 690, 75 S.E.2d 756; Grimm v. Watson, 233 N.C. 65, 62 S.E.2d 538; Hobbs v. Drewer, 226 N.C. 146, 37 S.E.2d 121.

An examination of the record in the light of these principles of law leaves the impression that the plaintiff made out a clear case of actionable negligence, free of facts and circumstances Shown by his own evidence amounting to contributory negligence as a matter of law. The motion for judgment as of nonsuit was properly overruled.

The cases relied on by the defendant, Morrisette v. A. G. Boone Co., 235 N.C. 162, 69 S.E.2d 239, and Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25, are factually distinguishable.

The next group of exceptions brought forward relate to rulings on the reception of evidence. In response to questions put to the plaintiff in respect to What the defendant said to him at the hospital the day after the collision, the trial court permitted the plaintiff to testify over objection: "He said if I would wait until he got out of the hospital that he would take care of everything. * * * He said he would take care of everything and I didn't have anything to worry about."

The defendant insists that this line of testimony should have been excluded as amounting to an offer of compromise. It is elemental that evidence of an offer to compromise, as such, is inadmissible as an admission of the party making it. Penn Dixie Lines Inc. v. Grannick, 238 N.C. 552, 555, 78 S.E.2d 410; Merchant v. Lassiter, 224 N.C. 343, 30 S.E.2d 217; Stansbury, N.C. Evidence, Sec. 180. Dean Wigmore says: "The true reason for excluding an offer of compromise is that it does not ordinarily proceed from and imply a specific belief that the adversary's claim is well founded, but rather a belief that the further prosecution of that claim, whether well founded or not, would in any event cause such annoyance as is preferably avoided by the payment of the sum offered. In short, the offer implies merely a desire for peace, not a concession of wrong done." Wigmore on Evidence, Third Ed., Vol. III, Sec. 1061, p. 28.

But be this as it may, the challenged statement, when considered in context, appears not to have been made on the theory of an offer to compromise, but rather as tending to show an admission of liability on the part of the defendant. The evidence was competent and admissible for that purpose. Wells v. Burton Lines, Inc., 228 N.C. 422, 45 S.E.2d 569; Hobbs v. Queen City Coach Co., 225 N.C. 323, 34 S.E.2d 211. See also Brown v. Wood, 201 N.C. 309, 160 S.E. 281.

The defendant also assigns as error the rulings of the court in permitting the witness M. L. Kimbro to recount, over objections, the circumstances surrounding the wreck as told him by the plaintiff. The following is an illustrative portion of witness Kimbro's testimony to which the defendant excepted:

"* * * He (the plaintiff) told me roughly, * * * how this collision came about.

"Q. What did he tell you?


"Mr. Fairley: I ask it for the purpose of corroboration, your Honor.

"Court: Overruled. This is offered only for the purpose of corroborating Mr. Gibson, if you find it does corroborate.

"Exception No. 21.

*201 "A. * * *, and he told me after he stopped at the red light at Pecan and Seventh, he was coming on down, he seen the headlights of the car coming up over the rise of Laurel Avenue. He thought he was going to stop. * * *

"Q. Did he say whether or not the car came to a stop at the stop sign?

"Objection. Overruled. Exception No. 22.

"A. He said it didn't stop; that it came on out in front of him."

The defendant seeks to invoke the rule that corroborative evidence of this kindprevious consistent statementsordinarily is not admissible to bolster the testimony of a witness until the witness has been impeached in some way. Stansbury, N.C. Evidence, Sec. 50. The gist of defendant's contention is that the plaintiff had been cross-examined in mere routine fashion without impairment of his credibility. However, our examination of the record impels the other view. The general tenor of the cross-examination, covering 10 pages of the printed record, discloses an earnest and vigorous effort to discredit the plaintiff's testimony in chief. And it is manifest that the efforts of counsel were not without some measure of success. As to this, attention is directed to the plaintiff's admission of error in his drawing: "The first mark indicating the position of my automobile that I made was right here at the south curb. * * * That's the mark that I put on there. When I put that mark there, well, I just made a mistake; I meant to put it up closer to the center line. * * *" It is also noted that before the witness Kimbro testified as to his conversation with the plaintiff, the defendant had cross-examined plaintiff's witness Wallace in respect to the statements plaintiff had made to him about the collision. The application of the rules regulating the reception and exclusion of corroborative testimony of this kind, so as to keep its scope and volume within reasonable bounds, is necessarily a matter which rests in large measure in the discretion of the trial court. The rulings of Judge Sharp in admitting the corroborative testimony of the witness Kimbro have the sanction of authoritative decisions of this Court. State v. Exum, 138 N.C. 599, 50 S.E. 283. Stansbury, N.C. Evidence, Sec. 31, footnotes, for collection of cases. For criticism of the rule which sanctions this kind of evidence, see Wigmore on Evidence, Third Ed., Sec. 1122 et seq.

As to the further contention that portions of the corroborative statements did not in fact corroborate the plaintiff's testimony, State v. Rollins, 113 N.C. 722, 18 S.E. 394, it is enough to say that no motion was made to strike any part of the witness' answers. This renders the defendant's latter contention untenable. The rule is that where a question asked a witness is competent, exception to his answer, when incompetent in part, should be taken by motion to strike out the part that is objectionable. Steelman v. Benfield, 228 N.C. 651, 46 S.E.2d 829; Luttrell v. Hardin, 193 N.C. 266, 136 S.E. 726. See also Cathey v. Shope, 238 N.C. 345, 348, 78 S.E.2d 135.

The remaining exceptions brought forward, including some 13 which relate to the charge, have been examined. They are without substantial merit. The rulings and instructions to which these exceptions relate are either correct or nonprejudicial under the rule of contextual construction. Prejudicial error has not been made to appear. The verdict and judgment will be upheld.

No error.

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