Artesani v. Gritton, 387

• Decision Date: 04 May 1960
• Docket Number: No. 387,387
• Citation: 252 N.C. 463,113 S.E.2d 895
• Parties: David J. ARTESANI, by his Next Friend, J. H. Artesanl, v. Harold Richard GRITTON and Durham Life Insurance Company. J. H. ARTESANI v. Harold Richard GRITTON and Durham Life Insurance Company.
• Court: North Carolina Supreme Court

Page 895

113 S.E.2d 895

252 N.C. 463

David J. ARTESANI, by his Next Friend, J. H. Artesanl, v. Harold Richard GRITTON and Durham Life Insurance Company.

J. H. ARTESANI v. Harold Richard GRITTON and Durham Life Insurance Company.

No. 387

Supreme Court of North Carolina.

May 4, 1960

Deal, Hutchins & Minor, Winston-Salem, for plaintiff-appellants.

Hudson, Ferrell, Carter, Petree & Stockton, Winston-Salem, for defendant-appellees.

RODMAN, Justice.

Plaintiffs, residents of a suburb of Winston-Salem, live on the north side of Bethabara Road, which runs in an easterly and westerly direction. The road is paved, with dirt shoulders on the side. The paved area is 18 feet in width and the south shoulder at the scene of the accident has a width of 7 feet. A mail box is located at the southern edge of the shoulder opposite the Artesani home. Traveling from east to west, one encounters a sharp curve to the right which terminates just before reaching the Artesani property, permitting an unobstructed view of the highway to the mail box for 250 feet. Because of the curve the view to the entrance of the Artesani yard would be less than this, but how much less does not appear from the evidence.

About 2:30 p. m. on 9 April 1957 defendant Gritton was driving his automobile westwardly on the Bethabara Road. He was accompanied by his superior, Mr. Poindexter. Gritton was in the northerly lane, the proper lane for travel moving west as he was. His automobile struck David and inflicted serious injuries to his right shoulder, leg, and head. The car left skid marks for a total distance of 70 feet. These marks began 21 feet east of the mail box. The child was carried with the car until it stopped at the end of the skid marks. Gritton, examined adversely by plaintiff, testified: 'The first time I saw the child was when he was directly in front of my car, some 4 or 5 or 10 feet, whatever it was, right directly in front, approximately midways of the righthand section of the road. Mr. Poindexter saw the child just an instant before I saw him, and he said, 'Look out!' * * * The first time I remember seeing the child he was right in front of me and he was running, and he was over on my side of the road. ' Gritton, immediately following the accident, told a police official that when Poindexter called attention to the child 'he (Gritton) looked up at that time and the child was about 6 foot in front of him.'

Liability of defendants is based on the asserted failure of the driver to maintain a proper lookout, which would have disclosed the presence of the child crossing the highway from the mail box to his home. Plaintiffs contend when traveling in that direction and from the mail box the child would have traversed some 20 feet of highway in plain view of defendant. To support their contention they point to the injuries which were on the right side of the body, indicating the child was facing north when struck; and as additional proof that the child was returning from the mail box to his home, he was called as a witness for the purpose of showing why he was on the road and where he came from. Defendants objected to the proposed testimony, asserting that the child was, because of his youth, not competent to testify. Thereupon the jury was excused, the child was sworn. He identified the Bible, said that he knew what it was, that it contained stories about God, and said that people who told lies were punished. He stated that he lived on the Bethabara Road. At the time of the trial he was in the second grade of the public school. He was then asked and answered these questions:

'Q. Can you tell the Judge what you were doing? A. I was going across the street to mail a letter.

'Q. What were you doing when the car hit you? Were you going across the street, or the other way? A. I was going back, you know, across the street back home.

'Q. Back home? A. (The witness nodded his head affirmatively.)

'Q. You don't remember anything else about it, do you, David? A. I do.

'Q. What else do you remember? A. I remember how I was inside. I remember how it happened inside and everything, when I started to go across the street, what kind of feeling I had.

'Q. What kind of feeling you had? A. Feeling. I had a bad feeling.

'Q. Do you remember anything else, David? A. No.'

Thereupon the court directed this entry to be made: 'The Court finds as a fact that David Artesani is, as of this date, seven years and three months old, and on the date of the alleged collision between the motor vehicle of the defendants and the plaintiff, was four years and eight months old, and the Court is of opinion that by reason of age that the witness is incompetent to testify as to matters concerning the alleged collision, and in its discretion sustains the objection of the defendants to the proposed testimony of the witness.'

Plaintiff J. H. Artesani came to the scene of the accident about fifteen minutes after the child was struck. He was then lying in the road and was conscious. He asked: 'David, how do you feel?' The child replied: 'I hurt.' The witness then testified that David said: 'Daddy, I was at the mail box, mailing a letter to Nana, and I got hit on my way back.' This statement made by the child to his father was excluded.

Plaintiff assigns the exclusion of the proffered testimony of the child and father as prejudicial error.

Whether there was error in excluding the testimony must be determined by interpreting the ruling made by the trial judge with respect to the competency of the child to testify.

The test of competency is not age but capacity to understand and relate under the obligation of an oath a fact or facts which will assist the jury in determining the truth with respect to the ultimate facts which it will be called upon to decide. State v. Edwards, 79 N.C. 648; Lanier v. Bryan, 184 N.C. 235, 114 S.E. 6, 26 A.L.R. 1488; State v. Satterfield, 207 N.C. 118, 176 S.E. 466; State v. Jackson, 211 N.C. 202, 189 S.E. 510; Carpenter v. Boyles, 213 N.C. 432, 196 S.E. 850; State v. Merritt, 236 N.C. 363, 72 S.E.2d 754; Cross v. Commonwealth, 195 Va. 62, 77 S.E.2d 447; Hill v. Skinner, 81 Ohio App. 375, 79 N.E.2d 787; Senecal v. Drollette, 304 N.Y. 446, 108 N.E.2d 602; Stansbury, N.C. Evidence, sec. 55; 58 Am.Jur. 99-100; 97 C.J.S. Witnesses § 58, p. 449.

Wigmore states the law thus: 'But this much may be taken as settled, that no rule defines any particular age as conclusive of incapacity; in each instance the capacity of the particular child is to be investigated.' Wigmore on Evidence, 3rd ed., sec. 505.

Courts, in declaring and applying the rule which determines the competency of children to testify, have said the question of competency rests in the sound discretion of the trial judge. Typical is the statement of Reade, J.: '(I)t being a question of capacity, and of moral and religious sensibility in any given case whether the witness is competent, it must of necessity be left mainly if not entirely to the discretion of the presiding Judge.' State v. Edwards, supra.

This discretion to determine the competency of evidence is the power to determine a factual question in accord with established rules of law. It is...