Johnson v. Heath

81 S.E.2d 657 (1954)

240 N.C. 255

JOHNSON v. HEATH et al.

No. 310.

Supreme Court of North Carolina.

May 5, 1954.

*659 Robert D. Rouse, Jr., Farmville, for plaintiff-appellant.

Albion Dunn and Louis W. Gaylord, Jr., Greenville, for defendants-appellees.

PARKER, Justice.

The facts in the recent case of Kelly v. Willis, 238 N.C. 637, 78 S.E.2d 711, are different. In that case the mule suddenly emerged from the darkness north of the highway, trotted onto the highway and into the path of plaintiff's oncoming truck, which was only 15 feet away. The driver saw the mule just as it emerged from the darkness, promptly applied his brakes, but could not stop before striking the mule. He could not turn to the left to avoid striking the mule, because of an approaching automobile on that part of the roadway.

It is the duty of the driver of an automobile to keep a reasonably careful lookout in the direction of travel so as to avoid collision with animals, persons and vehicles on the highway. Singletary v. Nixon, 239 N.C. 634, 80 S.E.2d 676; Cox v. Lee, 230 N.C. 155, 52 S.E.2d 355; Murray v. Atlantic Coast Line R. Co., 218 N.C. 392, 11 S.E.2d 326. "He is held to the duty of seeing what he ought to have seen." Wall v. Bain, 222 N.C. 375, 23 S.E.2d 330, 333.

The plaintiff was operating his automobile on a straight public highway. It was a bright, moonlit night. He was meeting no car; nothing obstructed his view. The mule was grazing beside the road, and started walking across the highway when plaintiff was 100 yards away. Without slackening his speed plaintiff drove on, and collided with the mule, when only her hindquarters and rear feet were on the pavement. There was plenty of room for him to turn to the left, and avoid the collision. One of plaintiff's witnesses, who saw the collision, testified without objection the headlights of the car picked up the mule when the automobile was 100 or 150 yards of the mule. Plaintiff's evidence compels the unescapable conclusion that he was not looking in the direction of travel, or if looking, he did not see the mule in time to turn to the left and avoid striking her. In either event, his own negligence, as a matter of law, proximately contributed to his injury, and plaintiff has proved himself out of court. Presley v. C. M. Allen & Co., 234 N.C. 181, 66 S.E.2d 789; Cox v. Lee, supra; Sawyer v. Southern Ry. Co., 234 N.C. 164, 66 S.E.2d 639; Ovens v. City of Charlotte, 159 N.C. 332, 74 S.E. 748.

Plaintiff makes these contentions: the court erred in excluding evidence that two days after the collision one defendant conveyed all of his property to his wife, and the other all of his property to his father; that the court erred in charging the jury there was no evidence that the defendants knowingly permitted the mule to run at large; and there was not sufficient evidence for the jury to consider whether an agent of the defendants permitted the mule to get out of the pasture. Conceding, but not deciding, there was technical error in the trial below; it was harmless, for if this action were returned for a new trial, the plaintiff could not recover.

Technical error is not sufficient to disturb the verdict and judgment. The burden is on the appellant not only to show error, but to show prejudicial error amounting to the denial of some substantial right; or to phrase it differently, to show that if the error had not occurred, there is a reasonable probability the result *660 of the trial might have been materially more favorable to him. Smith v. Gulf Oil Corp., 239 N.C. 360, 79 S.E.2d 880; Freeman v. Preddy, 237 N.C. 734, 76 S.E.2d 159; Rea v. Simowitz, 226 N.C. 379, 38 S.E.2d 194; Smith v. Steen, 225 N.C. 644, 35 S.E.2d 888; Collins v. Lamb, 215 N.C. 719, 2 S.E.2d 863; Wilson v. Suncrest Lumber Co., 186 N.C. 56, 118 S.E. 797.

In Freeman v. Preddy, supra [237 N.C. 734, 76 S.E.2d 160], the Court said "we have consistently held that when, upon a consideration of the whole record, it clearly appears that the appellant, under no aspect of the testimony, is entitled to recover and that the evidence considered in the light most favorable to him is such that the trial judge would have been fully justified in giving a peremptory instruction, or directing a verdict, against him on the determinative issue or issues, any error committed during the trial will be deemed harmless"Citing many authorities.

Applying the rules of appellate practice, it becomes clear the case should not be sent back for a new trial.

No error.