Beanblossom v. Thomas, s. 451

Decision Date14 January 1966
Docket Number452,Nos. 451,459,s. 451
Citation266 N.C. 181,146 S.E.2d 36
CourtNorth Carolina Supreme Court
PartiesSarah L. BEANBLOSSOM, Administratrix of the Estate of Betty Louise Leonard, Dec'd, v. Haywood THOMAS, Anderson Truck Line, Inc., and Charlie Wilson Anderson. David O. TETTER, Administrator of Wanda Louise Tetter, Deceased, v. Haywood THOMAS, Anderson Truck Line, Inc., and Charlie Wilson Anderson. Patricia Ann BROWNING v. Haywood THOMAS, Anderson Truck Line, Inc., and Charlie Wilson Anderson. Florence BROWNING v. Haywood THOMAS, Anderson Truck Line, Inc., and Charlie Wilson Anderson. Anna Christine BROWNING, by her Next Friend, Lawrence Brown v. Haywood THOMAS, Anderson Truck Line, Inc., and Charlie Wilson Anderson.

Frank C. Ausband, Kernersville, for Sarah L. Beanblossom, administratrix of the estate of Betty Louise Leonard, plaintiff appellant.

Ferree, Anderson, Bell & Ogburn, Asheboro, for David O. Tetter, administrator of Wanda Louise Tetter, plaintiff appellant.

Spry, Hamrick & Doughton, Winston-Salem, for Patricia Ann Browning, Florence Browning, and Anna Christine Browning, plaintiff appellants.

Jordan, Wright, Henson & Nichols and Edward L. Murrelle, Greensboro, for defendant appellees.

SHARP, Justice:

Plaintiffs' first assignment of error relates to the form of the second issue. This assignment is not based on an exception appearing in the case on appeal and, for that reason, will not be considered. Carpenter, Solicitor v. Boyles, 213 N.C. 432, 196 S.E. 850. The second assignment is to the ruling of the court allowing Patrolman Conrad to answer the following question on cross-examination:

'Q. Based upon your full and complete investigation of this accident, you didn't charge Charlie Wilson Anderson with any traffic violation did you?

'A. No, Sir, I didn't.'

The purpose of this question could only have been to impeach the officer, or to inform the jury that, in the opinion of the patrolman, the truck driver was not at fault. Under the facts in this case, it was not competent for the first purpose, and, in no case, could it be competent for the second. Opinions of a nonexpert witness on the issue of negligence are inadmissible where the material facts can be placed before the jury. Mason v. Gillikin, 256 N.C. 527, 124 S.E.2d 537; Wood v. Michigan Millers Mutual Fire Insurance Co., 243 N.C. 158, 90 S.E.2d 310; State v. Cuthrell, 233 N.C. 274, 63 S.E.2d 549; Stansbury, N.C. Evidence § 124 (2d Ed. 1963). It is also the rule with us that evidence of a defendant's conviction in a criminal prosecution for the very acts which constitute the basis of the liability sought to be established in a civil suit is not admissible unless such conviction is based on a plea of guilty. Durham Bank & Trust Co. v. Pollard, 256 N.C. 77, 123 S.E.2d 104; Watters v. Parrish, 252 N.C. 787, 115 S.E.2d 1; Swinson v. Nance, 219 N.C. 772, 15 S.E.2d 284; Warren v. Pilot Life Insurance Co., 215 N.C. 402, 2 S.E.2d 17; Stansbury, op. cit. supra § 143. Cf. Taylor v. Taylor, 257 N.C. 130, 125 S.E.2d 373. Ordinarily, for the purpose of impeachment, a witness may be cross-examined with respect to his previous conviction of crime, but it is thought that to admit such evidence in a damage action growing out of the same accident would cause the jury to give undue weight to the conviction. Watters v. Parrish, supra. A fortiori, the patrolman's testimony that defendant Anderson was never charged with crime in connection with the accident in suit was incompetent either to corroborate Anderson or to exonerate him of negligence in the civil action. The admission of the challenged evidence was, therefore, clearly erroneous.

It does not necessarily follow, however, that the error was prejudicial to these plaintiffs. The evidence at the trial showed that if defendant Anderson were guilty of a violation of the criminal law, it was in following the Falcon too closely. G.S. § 20-152(a). It further discloses, however, that at the time the patrolman made his investigation of the wreck he had no evidence which would have justified such a charge against Anderson. Without objection, Conrad testified, 'When there is a rear-end collision, I try to obtain evidence to ascertain whether one vehicle was following more closely to another one.' According to all the evidence, at no time did Mrs. Browning ever tell Conrad that the truck was only a car's length behind the Falcon when the Chevrolet hit it. According to Conrad, it was during Thomas' criminal trial that she first told him she had seen the truck prior to the accident. At that time, she said the truck was 'immediately behind the car.' Mrs. Browning denied that she ever told Conrad she did not see the truck prior to the accident. 'I don't remember telling him, not to my knowledge,' she said. Anderson's statement to the patrolman at the scene certainly suggested no violation by him of the criminal law, nor did that of Mrs. Browning, whether we accept her version of it or that of Conrad. Obviously, the patrolman's decision not to charge Anderson with any violation of the law was based on the information he secured at the time he made his investigation, and the jury must have understood this. We see no 'reasonable probability the result of the trial might have been materally more favorable' to plaintiff had their objection to this evidence been sustained. Waddell v. Carson, 245 N.C. 669, 97 S.E.2d 222.

The other assignments of error argued by plaintiffs relate to the charge.

The court, after fully explaining joint and concurring negligence, instructed the jury that if the negligence of both Thomas and Anderson concurred in proximately causing the deaths and injuries in suit it would answer the second issue YES 'because, upon such a finding, defendants Charlie Wilson Anderson and Anderson Truck Lines, Inc. would be liable * * * exactly as if the defendant Charlie Wilson Anderson was solely responsible for the proximate cause of such deaths and alleged injuries.' The exception to this portion of the charge, the subject of assignment of error No. 4 is overruled. Plaintiffs' contention that the quoted portion was tantamount to an instruction that, in order to answer the issue YES, the jury must find Anderson solely responsible for the collision, merits no discussion. It was a correct statement of the law, and could not have been expressed more favorably to plaintiffs.

Plaintiffs' other assignments of error relate to the charge as it attempted to apply the doctrine of foreseeability as an element of proximate cause to situations governed by G.S. § 20-152(a).

Plaintiffs concede that the court 'apparently correctly charged the jury' that a motorist is not bound to anticipate the negligent acts or omissions of another motorist. They contend, however, that the court erred when he instructed the jury that 'if defendants Anderson * * * could reasonably foresee the intervening negligence and resulting deaths and alleged injuries produced by the admitted negligence of Haywood Thomas, then the sequence of events is not broken by the new and independent cause, and defendants remain liable if found guilty of actionable negligence from the evidence and by its greater weight.' They also contend that he erred when he charged that in...

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