21 S.E.2d 818 (N.C. 1942), 27, Patrick v. Treadwell

Docket Nº:27.
Citation:21 S.E.2d 818, 222 N.C. 1
Party Name:PATRICK v. TREADWELL et al.
Case Date:September 23, 1942
Court:Supreme Court of North Carolina
 
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Page 818

21 S.E.2d 818 (N.C. 1942)

222 N.C. 1

PATRICK

v.

TREADWELL et al.

No. 27.

Supreme Court of North Carolina

September 23, 1942

Page 819

This was an action to recover damages for a personal injury to the infant plaintiff, alleged to have been caused by the negligence of the defendants in the operation of an automobile.

There was evidence tending to show that on the 18th day of July, 1941, the plaintiff, a child eight years of age, was riding in a Pontiac automobile driven by her father; that at a point a mile north of Hertford, the automobile in which she was riding was struck by a Buick automobile proceeding in the opposite direction, driven by defendants; that defendants' automobile was being driven at a high rate of speed, and that in attempting to traverse a sharp curve the automobile swerved and struck the automobile in which plaintiff was riding, and that as a result plaintiff fell from the seat to the floor of the automobile. It

Page 820

was further made to appear that previously, on July 5, 1941, the plaintiff had accidentally broken her left arm above the elbow and at the time of the collision the fractured bone had been set, and was held in position by a plaster cast. It was contended by the plaintiff that as a consequence of the fall in the automobile, due to the collision, the cast was broken, and that it was subsequently discovered that the fractured ends of the bone in plaintiff's arm had separated. An operation was necessitated and a permanent injury resulted.

On the part of the defendants evidence was offered tending to show absence of negligence on the part of the defendants, and it was further contended that plaintiff's evidence failed to show that the separation of the ends of the fractured bone in plaintiff's arm was caused by the collision; and that upon failure of proof of this fact plaintiff could not maintain her case.

Defendants' motion for judgment of nonsuit was denied. Issues were submitted to the jury and verdict rendered for plaintiff establishing negligence and awarding substantial damages. From judgment on the verdict, defendants appealed.

Worth & Horner, of Elizabeth City, for appellants.

McMullan & McMullan, of Elizabeth City, for appellee.

DEVIN, Justice.

An examination of the record leads us to the conclusion that plaintiff's evidence, considered in the light most favorable for her, was sufficient to warrant submission of the case to the jury, and that the motion for judgment of nonsuit was properly denied. However, we think there was error in the admission of testimony necessitating a new trial.

One of plaintiff's witnesses, Dr. W. H. Harrell, admitted to be a medical expert, testified, over objection, in response to questions, as follows:

"Q. Doctor, assuming the jury should find from the evidence and by its greater weight, that following Rose Marie's breaking her arm in the manner you have described on the 5th day of July, and that from that day until you saw her on the 11th day of July it was in the condition which you have heretofore described, that on the 18th day of July she was a passenger in an automobile being driven in Perquimans County, which was involved in an accident with a car driven by the defendant, Mr. Treadwell, the car in which she was a passenger being stricken with sufficient violence to throw her from the seat onto the floor of the car, and that as a result thereof the cast which you had put on her left arm was broken, that from the examination of her arm on the 11th day of July until this collision on the 18th the cast had remained intact, have you an opinion...

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