McCombs v. McLEAN TRUCKING COMPANY

114 S.E.2d 683 (1960)

252 N.C. 699

John E. McCOMBS, Administrator of the Estate of Joe Washington Scott, Jr., v. McLEAN TRUCKING COMPANY and William Lester Oliver. David V. MILLER, Doing Business as Interstate Motor Lines, v. McLEAN TRUCKING COMPANY and William Lester Oliver.

No. 594.

Supreme Court of North Carolina.

June 10, 1960.

*686 Smith, Moore, Smith, Schell & Hunter, Greensboro, Haworth, Riggs & Kuhn, High Point, for plaintiffs appellees.

Richmond Rucker, Spry & Hamrick, Winston-Salem, for defendants appellants.

WINBORNE, Chief Justice.

Appellants present on this appeal six questions for decision. We treat them in the order in which they are presented. The first challenges the ruling of the trial judge in denying defendants' motions for judgment as of nonsuit renewed at the close of all the evidence, G.S. § 1-183.

It being admitted that the collision involved in this action occurred in Virginia, "the question of liability for negligence must be determined by the law of that State. The rule in such cases is that matters of substantive law are controlled by the law of the placethe lex loci, whereas matters of procedure are controlled by the law of the forumthe lex fori. Thus the methods by which the parties are required to prove their allegations, such as the rule of evidence, and the quantum of proofs necessary to make out a prima facie case, are matters of procedure governed by the law of the place of trial * * * Therefore the question whether the evidence offered was sufficient to carry the case to the jury over defendant's motion for judgment as of nonsuit is to be determined under application of principles of law prevailing in this jurisdicton." So wrote Johnson, J., for the Court in Childress v. Johnson Motor Lines, 235 N.C. 522, 70 S.E.2d 558, 560. See also Harrison v. Atlantic Coast Line R. Co., 168 N.C. 382, 84 S.E. 519; Clodfelter v. Wells, 212 N.C. 823, 195 S.E. 11.

In this State on a motion to nonsuit under provisions of G.S. § 1-183, the evidence is to be taken in the light most favorable to the plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom. Indeed in considering such motion "the defendant's evidence, unless favorable to the plaintiff is not to be taken into consideration except when not in conflict with plaintiff's evidence, it may be used to explain or make clear that which has been offered by the plaintiff," Stacy, C. J., in Harrison v. North Carolina R. Co., 194 N.C. 656, 140 S.E. 598, 600, citing cases. See also Rice v. City of Lumberton, 235 N.C. 227, 69 S.E.2d 543.

Therefore, taking the evidence offered by the plaintiffs, in the main predicated on physical facts, upon which they rely (Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88, and cases cited), and so much of the defendants' evidence as is favorable to the plaintiffs, or tends to explain and make clear that which has been offered by the plaintiffs, in the light most *687 favorable to plaintiffs, this Court is of opinion, and holds that there is sufficient evidence to take the case to the jury on the issue of negligence of defendant Oliver, imputed to defendant McLean.

And it is appropriate to note that the General Assembly of Virginia declares in respect to rules of the road, Code of Virginia, Chap. 46.1-207, "drivers of vehicles proceeding in opposite direction shall pass each other to the right, each giving to the other, as nearly as possible, one-half of the main traveled portion of the roadway."

And while the driver of an automobile along a public highway, who sees another automobile approaching on the wrong side of the road, has the right to assume that the driver of such vehicle will observe the law and seasonably move over to his right side so as to pass safely, and further has a right to this presumption until he sees that such driver is not going to turn to his right side, it then becomes his duty to exercise ordinary care to avoid a collision. Johnson v. Kellam, 162 Va. 757, 175 S.E. 634.

And in this State the holding of this Court in that respect is epitomized in headnote in Boyd v. Harper, 250 N.C. 334, 108 S.E.2d 598, reading as follows: "The failure of a motorist to keep his car on his right side of the highway in passing a vehicle traveling in the opposite direction is negligence per se, and whether such negligence is a proximate cause of a collision is ordinarily for the jury to determine." G.S. § 20-146 and G.S. § 20-148.

The second clause of the first question is without merit. For reason stated hereinabove in respect to the question as to nonsuit, a directed verdict would have been error. See McIntosh N.C. P & P, Vol. 2, Sec. 1516, pages 52-53.

The third question relates to the action of the Court in overruling defendants' objection to plaintiffs' counsel in argument to jury, reading that portion of G.S. § 97-41 which provides: "In all other cases the total compensation paid including the funeral benefits, shall not exceed ten thousand dollars," and the statement of counsel as to the amount of the award to which dependents of intestate are entitled.

The record in this respect shows that during the argument to the jury counsel for defendants read portions of G.S. § 97-10 concluding with comment "that under those circumstances it was unlikely that the widow and children of deceased would be given any part of the recovery." Then counsel for plaintiffs, in his argument to jury, read the portion to which reference is first above quoted. And the counsel for plaintiffs contends that what he read was invited by the remarks of counsel for defendant so related. Be that as it may, it appears that the trial judge in his charge to the jury laid the matter to rest in this manner: "* * Now, none of the issues to be answered by you in this cause have any reference to that statute, and you therefore will not be concerned by that aspect of the case in any manner whatsoever, but you will answer these issues presented to you as you find the facts to be under the instructions of law to be given to you by the court without regard whatever to the situation that obtains in these actions by virtue of the statute and by virtue of the allegations with reference thereto, that being a matter with which you are not concerned and that your issues will not in any manner affect or reflect when you answer the issues of fact in this cause." And the record does not show that anybody objected.

The fourth relates to the exclusion of testimony of defendant Oliver in respect to use of toy vehicles to show relative locations of vehicles upon the highway. In Stansbury's North Carolina Evidence, Sec. 34, it is stated that "The North Carolina Court has often said that materials of this sort are not evidence, or are not substantive evidence, and that they can be used only to `illustrate' or `explain' the testimony of a witness." The record fails to disclose *688 on what ground the use of the material was excluded. It will, therefore, be assumed that the court had a valid reason. In any event it does not appear that defendants have been prejudiced by the ruling of the court.

The fifth and sixth questions purport to point to the reading and summarizing by the court statutory provisions as to rules of the road as inapplicable to the facts of the case at bar, and as not supported by the evidence.

In this connection it is worthy of note that in a record of more than 60 pages of pleadings and more than 100 pages of testimony, a charge of 66 pages is clear and free from error. It may be that sporadic instances of slight error may be found. Yet a careful reading of all evidence and the entire charge fails to make error appear for which the verdicts and judgments below should be disturbed.

Hence in the trial below, there is

No error.