Burnett v. Wilmington

• Citation: 26 S.E. 819,120 N.C. 517
• Court: United States State Supreme Court of North Carolina
• Decision Date: 16 March 1897
• Parties: BURNETT. v. WILMINGTON, N. & N. RY. CO.

26 S.E. 819

120 N.C. 517

BURNETT.

v.WILMINGTON, N. & N. RY. CO.

Supreme Court of North Carolina.

March 16, 1897.

Witnesses— Corroboration —Opinion Evidence — Examination of Experts — Hypothetical Question—Trial — Instructions—Sufficiency of Exception.

1. A witness may be corroborated by showing that he previously made similar statements as to the transaction.

2. In order to corroborate a witness by showing that he previously made the same statement as that made on the trial, it is not necessary to ask him to whom he made the corroborative statement.

3. An exception "to the charge as given" is valueless.

4. In an action for personal injuries it was error to admit a hypothetical question to a physician as to the cause of injury described, based on plaintiff's "sight and hearing being impaired, " where there was no evidence to show any impairment of plaintiff's hearing.

Appeal from superior court, New Hanover county; Coble, Judge.

Action by T. B. Burnett against the Wilmington, Newbern & Norfolk Railway Company for personal injuries caused by defendant's negligence. From a judgment in favor of plaintiff, defendant appeals. Reversed.

A. M. Waddell and J. D. Bellamy, for appellant.

Thos. W. Strange, for appellee.

CLARK, J. The first assignment of error is unfounded. It is competent to corroborate a witness by showing that previously he had made the same statement as to the transaction as that given by him on the trial. Johnson v. Patterson, 9 N. C. 183; State v. Twitty, Id. 449; State v. George, 30 N. C. 324; State v. Dove, 32 N. C. 469; Bullinger v. Marshall, 70 N. C. 520; State v. Laxton, 78 N. C. 564; State v. Parish, 79 N. C. 610; Jones v. Jones, 80 N. C. 247; State v. Blackburn, Id. 474; Roberts v. Roberts 82 N. C. 29; State v. Boon, Id. 648; McLeod v. Bullard, 84 N. C. 515, 529; Davis v. Council, 92 N. C. 725; State v. Brewer, 98 N. C. 607, 3 S. E. 819; State v. Jacobs, 107 N. C. 873, 12 S. E. 248; State v. Freeman, 100 N. C. 429, 5 S. E. 921; State v. Ward, 103 N. C. 419, 8 S. E. 814; State v. Morton, 107 N. C. 890, 12 S. E. 112; State v. Brabham, 108 N. C. 793, 13 S. E. 217; Hooks v. Houston, 109 N. C. 623, 14 S. E, 49; Gregg v. Mallett, 111 N. C. 74, 15 S. E. 936; State v. McKinney, 111 N. C. 683, 16 S. E. 235; Byrd v. Hudson, 113 N. C. 203, 18 S. E. 209. Indeed, the witness himself is competent to testify to the consistent statements previously made by him. State v. George, supra; March v. Harrell, 46 N. C. 329; State v. Mitchell, 89 N. C. 521; State v. Whitfield, 92 N. C. 831; McRae v. Malloy, 93 N. C. 154; State v. Rowe, 98 N. C. 629, 4 S. E. 506; State v. Rhyne, 109 N. C. 794, 13 S. E. 943; Sprague v. Bond, 113 N. C. 551, 18 S. E. 701; Wallace v. Grizzard, 114 N. C. 488, 19 S. E. 760; State v. Staton, 114 N. C. 813, 19 S. E. 96. In view of these and yet other decisions continuously from those of the first chief justice of this court, above cited, from 9 N. C, down to the present, uniformly sustaining the competency of such evidence, it admits of a mild surprise that such exception should be again presented to this court. It is true that the judge should explain to the jury that such evidence is merely corroborative, and not substantive, evidence (Sprague v. Bond, supra), but there is no exception that the court failed to instruct the jury that it was merely corroborative evidence, and the presumption is that the charge was unexceptionable in that respect (Byrd v. Hudson, 113 N. C. 203, 18 S. E. 209; State v. Brabham, 108 N. C. 793, on page 796, 13 S. E. 218; State v. Powell, 106 N. C. 635, 11 S. E, 191). The "broadside" exception "to the charge as given" is valueless for any purpose. McKinnon v. Morrison, 104 N. C. 354, 10 S. E. 513, and cases there cited, and numerous cases cited Clark's Code (2d Ed.) pp. 382, 383, and in Supplement to same, page 64; State v. Page, 116 N. C. 1016, 21 S. E. 401; Kendrick v. Dellinger, 117 N. C. 491, 23 S. E. 438; State v. Downs, 118 N. C. 1242, 24 S. E. 531. Nor is there any precedent or any support in reason for the earnest contention of counsel that the witness, when on the stand, should have been asked as to whom he had made corroborative statements. When it is sought to contradict a witness by showing statements made by him inconsistent with his evidence, it is competent, on his cross-examination, in order to put him on his guard, to ask him if he has not made such inconsistent statements; but even then this is not essential when the evidence is material to the issue. Radford v. Rice, 19 N. C. 39; State v. Patterson, 24 N. C. 346; Black v. Bay-lees, 86 N. C. 527; State v. Davis, 87 N. C. 514; State v. Mills, 91 N. C. 581; Statev. Morton, 107 N. C. 890, 12 S. E. 112. It is only when a collateral question is asked as to declarations to show temper, bias, or disposition of the witness that the preliminary question whether he has made such statement must be asked, and time and place must be given. State v. Brabham, 108 N. C. 793 (on page 796), 13 S. E. 218; Radford v. Rice, supra; State v. Patterson, 24 N. C. 346; Edwards v. Sullivan, 30 N. C. 302; State v. Sam, 53 N. C. 151; State v. Kirk-man, 63 N. C. 246. Indeed, as to other collateral questions, his answer is conclusive. Clark v. Clark, 65 N. C. 655; State v. Elliott, 68 N. C. 124; State v. Patterson, 74 N. C. 157; State v. Roberts, 81 N. C. 606; State v. Glisson, 93 N. C. 506; State v. Ballard, 97 N. C. 443, 1 S. E. 685; State v. Morris, 109 N. C. 820, 13 S. E. 877; 1 Greenl. Ev. § 449. In deference to the request of counsel and the earnestness of argument we give the above resumé of principles applicable to corroborative and impeaching evidence, as settled by the uniform decisions of our court. There are many other decisions to the same purport, but these are sufficient to show that the practice is reasonably well settled.

On the second exception, we are with the appellant. It was error to ask the expert, Dr. Russell, a hypothetical question as to the cause of injury described, based upon plaintiff's "sight and hearing being impaired to such a degree that he has been unable to attend to his regular business, such troubles...