Farrow v. Baugham

147 S.E.2d 167 (1966)

266 N.C. 739

Cora Lee FARROW, Administratrix of the Estate of Arthur R. Farrow, Jr., Deceased, v. Charles BAUGHAM and Kathryn Baugham.

No. 193.

Supreme Court of North Carolina.

March 23, 1966.

*169 Addison Hewlett, Jr., and Marshall & Williams, Wilmington, for plaintiff appellant.

James, James & Crossley, Wilmington, for defendant appellees.

PER CURIAM.

Plaintiff assigns as error the exclusion of Officer Hodges' "determination" that the Farrow car was either stopped or barely moving at the time of the accident. This evidence was properly excluded.

"A witness who investigates but does not see a wreck may describe to the jury the signs, marks, and conditions he found at the scene, including damage to the vehicle involved. From these, however, he cannot give an opinion as to its speed. The jury is just as well qualified as the witness to determine what inferences the facts will permit or require." Shaw v. Sylvester, 253 N.C. 176, 180, 116 S.E.2d 351, 355.

Considering all the evidence which the trial judge admitted (as we are required to do in considering a motion for nonsuit, Frazier v. Suburban Rulane Gas Co., 248 N.C. 559, 103 S.E.2d 721), and, considering it in the light most favorable to the plaintiff, the evidence still leaves "too many unknowns and imponderables" to permit the jury to consider it. Assuming, as plaintiff has alleged, that Farrow was going east and that Baugham was going north, the latter had the right of way unless Farrow was already in the intersection when Baugham approached. G.S. § 20-155 (a). Was Farrow already in the intersection when Baugham approached it? The evidence gives us no answer. Where in the intersection did the impact occur? The record discloses that, without objection, Officer Bryan put a star on the blackboard diagram to indicate "the impact area." In making his ruling, the trial judge had the benefit of this information; we do not. No copy or photograph of the blackboard drawing accompanied the case on appeal. See Reynolds v. Hayes, 256 N.C. 732, 125 S.E.2d 18. Appellees' brief contains the statement that "the Farrow and Baugham cars ended up on the southwest corner." We have no way of knowing where they "ended up," for, without the map, we cannot locate either "here" or "there." The record does disclose that marks which led to the Farrow and Baugham cars began in the southeast quadrant and led off in a southwesterly direction. If we assume that the impact occurred in the southeast quadrant, it is difficult to see how the two *170 cars, going east and north respectively, came to rest in the southwest quadrant. Could the Farrow car, having approached from the west, been attempting to make a left turn in the intersection to go north on Sixteenth Street? Or, having approached from the north, was it attempting to make a left turn in order to go east on Marstellar? And what was the role of the Jackson car in the collision? No marks led to it. Plaintiff's theory is that the Farrow vehicle, traveling east, was struck by Baugham, going north, and that Jackson, traveling west on Marstellar, then collided with Baugham and perhaps Farrow. We may speculate at length on the manner in which this collision occurred, but evidence is lacking. Negligence is not presumed from the fact that plaintiff's intestate was killed in the collision. Plaintiff must offer evidence "sufficient to take the case out of the realm of conjecture and into the field of legitimate inference from established facts." Williamson v. Randall, 248 N.C. 20, 25, 102 S.E.2d 381, 386.

The judgment of involuntary nonsuit entered below is

Affirmed.

MOORE, J., not sitting.