Key v. Woodlief

128 S.E.2d 567 (1962)

258 N.C. 291

Lillian KEY v. William Thomas WOODLIEF.

No. 531.

Supreme Court of North Carolina.

December 12, 1962.

*568 Ottway Burton, Linwood T. Peoples, Asheboro, for plaintiff, appellant.

Jordan, Wright, Henson & Nichols, and G. Marlin Evans, by G. Marlin Evans, Greensboro, for defendant, appellee.

HIGGINS, Justice.

The jury's negative finding on the issue of negligence ends the case unless the plaintiff is able to show reversible error on that issue. Any errors involving contributory negligence or damages, unless they likewise materially affect the first issue, are nonprejudicial.

The assigned errors requiring discussion are (1) the exclusion of the witness Garner's testimony that the defendant's speed was 50 miles per hour, and (2) the admission of the highway patrolman's testimony that the attending physician made the statement while he was treating the plaintiff that "she was loaded."

1. Mr. Garner testified he saw the lights of defendant's vehicle when it was 100-150 feet away. He did not say he observed them for any distance. If it be admitted a witness may qualify himself to testify as to the speed of an approaching vehicle by merely seeing the lights, the observation must be for such distance as to enable him to do more than hazard a guess as to speed. In this case the witness did not qualify himself to testify as to speed. *569 Therefore, the testimony was without probative force, clearly incompetent, and properly excluded. Hudson v. Petroleum Transit Co., 250 N.C. 435, 108 S.E.2d 900; Fleming v. Twiggs, 244 N.C. 666, 94 S.E.2d 821; State v. Becker, 241 N.C. 321, 85 S.E.2d 327.

2. At the time of the mishap the plaintiff and her companion Garner were on their way to visit in the home of a relative. It was near midnight. They had been together much of the day. The evidence strongly indicated that Garner was intoxicated. The plaintiff denied that she, or Garner to her knowledge, had been drinking. The physician who testified for the plaintiff as to her injuries was asked on crossexamination if the plaintiff was intoxicated. He stated he did not examine her for intoxication and did not know. He denied making the statement, "She was loaded." The highway patrolman, a witness for the defendant, was permitted, over objection, to contradict the doctor by testifying the doctor said "she was loaded." We need not quibble about the meaning of "loaded." Among the jurors, no doubt at least one will remember the jingle:

"When going up or down the road, A little jug of liquor makes a big man a load."

Whether the plaintiff was "loaded" presented a collateral matter. When the doctor denied making the statement the defendant was bound by the answer. The testimony of the patrolman as to what the doctor said was hearsay and should have been excluded. Gurganus v. Guaranty Bank & Trust Co., 246 N.C. 655, 100 S.E.2d 81; Jones v. Bailey, 246 N.C. 599, 99 S.E.2d 768. However, was the evidence sufficiently prejudicial to justify sending the case back for a new trial? Did the evidence adversely affect the plaintiff's efforts to establish defendant's negligence?

A careful review of the charge on the first issue discloses that at no time did the court refer to any contention or suggestion the plaintiff was drinking. Not even Garner's condition was alluded to as having any bearing on defendant's negligence. The only reference to intoxication in the charge related to the issue of plaintiff's contributory negligence. The court thus stated the defendant's contentions: "* * * That she was walking along with Garner and that he was drinking and that he and she * * * were not paying attention and that they walked right into the lane of traffic." The court stated the plaintiff's contentions: "* * * That you should find from the evidence that she did cross the highway carefully, cautiously, lawfully, and that she was normal, that she had not been drinking anything."

There is no evidence in the record the defendant at any time argued or contended the plaintiff was under the influence of liquor. The defendant's contention on the issue of contributory negligence was that Garner was drinking. Of this, there was ample evidence. The plaintiff was not prejudiced as a result of the contributory negligence issue for the simple reason that issue was not answered. If the jury had found the defendant guilty of negligence and the plaintiff guilty of contributory negligence, a more serious question would be presented.

The physical evidence strongly corroborated the defendant's contention that he was not speeding; that he remained in his lane of traffic; that the vehicle moved only 35-40 feet after contact; that it was at a 45-degree angle to the left, still on the highway; that all the skid marks were on the highway; and that dents on the right front light and the right side of the car indicated that the plaintiff was on the hard surface and the defendant tried, as he testified, to avoid her by turning to the left. Articles from plaintiff's purse were scattered on the highway. She was partially on the hard surface after the impact. The physicial evidence, corroborating as it did the defendant's version of the case, was decisive. The disagreement between the highway patrolman and the doctor as to whether the latter said "she was loaded" *570 was not enough materially to discolor the clear stream of evidence favorable to the defendant.

A presumption exists that the judgment is correct. Error warranting a reversal or a new trial must amount to the denial of some substantial right. General Tire and Rubber Co. v. Distributors, Inc., 256 N.C. 561, 124 S.E.2d 508; Jenkins v. Leftwich Electric Co., 254 N.C. 553, 119 S.E.2d 767; In Re Gamble, 244 N.C. 149, 93 S.E.2d 66; Strong's N.C. Index, Vol. 1, "Appeal and Error," §§ 39-41, and the same sections in the Supplement to Vol. 1.

The record shows technical error which in view of the whole case did not have material bearing on the question of defendant's negligence. We conclude there was, in law,

No error.