Dixon v. Edwards

144 S.E.2d 408 (1965)

265 N.C. 470

Edna Foust Harris DIXON, Executrix of the Estate of John Daniel Dixon, Deceased, v. Charlie Webster EDWARDS, Julia Clark Edwards, and Larry Josh Edwards, by and through his guardian ad litem Julia Clark Edwards.

No. 116.

Supreme Court of North Carolina.

October 20, 1965.

*412 Mayo & Mayo, Washington, James & Speight, and W. H. Watson, Greenville, for defendant appellants.

Lewis & Rouse, Farmville, for plaintiff appellee.

LAKE, Justice.

As is carefully pointed out in the brief of the plaintiff appellee, the witness Billings did not express any opinion as to the location of the two vehicles on the highway immediately prior to the collision, which is the crucial point upon which liability depends in this case. The opinions stated by him, over objection, related to the angle of impact between the left sides of the two automobiles, the parts of the two automobiles which first collided, the amount of overlap between the left fronts of the two cars at the moment of collision and what the angle of impact between the two vehicles would have been and the direction in which each would have rotated following the collision if, immediately prior to the impact, the two vehicles had been proceeding as testified to by Michael Edwards, brother of the minor defendant, who was riding with him.

There is a sharp conflict between the decisions by courts of other jurisdictions as to the admissibility of the opinion of an expert in traffic accident reconstruction based upon his study, after the occurrence, of the damage to the vehicles, their movements after colliding, and other physical evidence at the scene. In Virginia and California, among other jurisdictions, it has been held that such evidence is not competent to show the point upon the highway at which the collision occurred. Venable v. Stockner, 200 Va. 900, 108 S.E.2d 380; Francis v. Sauve, 222 Cal. App. 2d 102, 34 Cal. Rptr. 754. Wisconsin and Oklahoma are among the jurisdictions which have allowed such evidence to be introduced for that purpose. Henthorn v. M. G. C. Corp., 1 Wis.2d 180, 83 N.W.2d 759, 79 A.L.R.2d 142; Tuck v. Buller (1957 Okla.), 311 P.2d 212, 66 A.L.R.2d 1043. For collections of authorities on both sides of the question, see: 8 Am.Jur.2d, Automobiles and Highway Traffic, § 989; Anno.: 66 A.L.R.2d 1048.

Apparently, this specific question has not been decided by this Court and it is not necessary to decide it now since the witness did not express an opinion as to the point in the highway at which the Edwards and Dixon vehicles collided.

At the close of all of the evidence the defendants renewed their motion for judgment as of nonsuit, such motion having been made and overruled at the conclusion of the plaintiff's evidence. Upon this motion the evidence offered by the plaintiff, together with those portions, if any, of the defendants' evidence which are favorable to the plaintiff, must be considered in the light most favorable to the plaintiff and to the exclusion of all evidence by the defendants which tends to establish a different state of facts or to contradict or impeach the testimony presented by the plaintiff. Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E.2d 338; Ammons v. Britt, 256 N.C. 248, 123 S.E.2d 579. All relevant evidence admitted by the trial *413 court, whether competent or not, must be accorded its full probative force in determining the correctness of its ruling upon a motion for judgment as of nonsuit. Ballard v. Ballard, 230 N.C. 629, 55 S.E.2d 316. We have so considered the testimony of the witness Billings. It is not necessary upon this appeal to determine its competency.

Applying these rules, there is no evidence to show that the Edwards car was on its left of the center of the traveled portion of the road at or prior to the time of the collision. No inference may reasonably be drawn from the testimony of the witness Billings that the Edwards car was being driven on its left of the center of the road. There is no evidence of unreasonable speed of the Edwards car or of any failure by the minor defendant to maintain a proper lookout or to apply his brakes or of any failure by him in any other duty owed to plaintiff's testator. Disregarding entirely the testimony offered by the defendants as to the position of the automobiles upon the road before and at the time of the impact, this fact is left to conjecture. Since the burden of proof is upon the plaintiff to show that the minor defendant was negligent in the operation of the Edwards vehicle and that his negligence was the proximate cause of the collision, the motion for judgment as of nonsuit as to the plaintiff's cause of action, made by the defendants at the close of all of the evidence, should have been allowed. Parker v. Flythe, 256 N.C. 548, 124 S.E.2d 530; Boyd v. Harper, 250 N.C. 334, 108 S.E.2d 598; Williamson v. Randall, 248 N.C. 20, 102 S.E.2d 381; Parker v. Wilson, 247 N.C. 47, 100 S.E.2d 258; Cheek v. Barnwell Warehouse & Brokerage Co., 209 N.C. 569, 183 S.E. 729; Grimes v. Carolina Coach Co., 203 N.C. 605, 166 S.E. 599.

We have considered each of the other assignments of error by the defendants. In each instance the ruling of the court below was either correct or was not sufficiently prejudicial to the defendants to entitle them to a new trial upon their respective counter-claims.

Under full and proper instructions the jury found that neither of the defendants was injured or damaged by the negligence of the plaintiff's testator, John Daniel Dixon. So much of the judgment below as provides that the defendants, Larry Josh Edwards and Charlie Webster Edwards, recover nothing of the plaintiff on their respective counterclaims is, therefore, affirmed. For the reasons above stated, the verdict in favor of the plaintiff upon the first and third issues is set aside, and that portion of the judgment providing that the plaintiff recover damages of the defendants together with the costs of this action is reversed. The cause is remanded to the superior court for the entry of a judgment in accordance with this opinion.

Affirmed in part.

Reversed in part.