Carolina Coach Co. v. Central Motor Lines

• Decision Date: 15 December 1948
• Docket Number: 672
• Citation: 50 S.E.2d 909,229 N.C. 650
• Parties: CAROLINA COACH CO. v. CENTRAL MOTOR LINES, Inc., et al.
• Court: North Carolina Supreme Court

50 S.E.2d 909

229 N.C. 650

CAROLINA COACH CO. v. CENTRAL MOTOR LINES, Inc., et al.

No. 672

Supreme Court of North Carolina

December 15, 1948

Civil action to recover for damage to, and for loss of use of, bus allegedly resulting from actionable negligence of defendant.

Defendants answering, deny any negligence on their part, and plead sole negligence and contributory negligence of plaintiff.

Upon the trial in Superior Court these three issues were submitted to the jury:

'1. Was the plaintiff's property damaged through the negligence of the defendants, as alleged?

'2. Did the plaintiff by its own negligence contribute to its damages as alleged in the answer?

'3. What amount, if any, is the plaintiff entitled to recover of the defendant?'

The jury answered the first issue 'Yes,' and the second issue 'Yes,' but, in accordance with the instructions of the court, having so answered the first and second issues did not answer the third issue.

From judgment for defendant and against plaintiff, on verdict so rendered, plaintiff appeals to Supreme Court, and assigns error.

I E. Johnson, of Raleigh, and W. H. Steed, of Thomasville, for plaintiff appellant.

Phillips & Bower and McCrary & DeLapp, all of Lexington, for defendants appellees.

WINBORNE Justice.

Plaintiff appellant, brings forward ten assignments of error, in none of which is prejudicial error made to appear. However we treat them seriatim:

Assignments of error Nos. 1, 2 and 4, based on exceptions of same numbers, are directed to the ruling of the court in sustaining objection by defendants to certain questions asked by counsel for plaintiff relating to cost of operation of buses of plaintiff. The record does not show what the answer of the witness would have been if permitted to answer. Competency of the testimony is not, therefore, presented by the assignments of error. Barbee v. Davis, 187 N.C. 78, 121 S.E. 176, and cases cited. See also Hamlet Ice Co. v. J. A. Jones Construction Co., 194 N.C. 407, 139 S.E. 771. Moreover, all of these questions here under consideration have bearing only on the third issue, that is, the issue of damages, which was not reached for answer by the jury. Hence, for this reason if there were error in sustaining the objections to them, it would be harmless.

Assignment of error No. 3 is founded on exception No. 3, taken to the action of the court in overruling objection by defendant to question asked by plaintiff pertaining to knowledge of the witness as to the cost of operation of the particular bus of plaintiff involved in this action. This ruling is in plaintiff's favor. Hence the exception is without merit.

Assignment of error No. 5, covering exception No. 5, to the action of the court in overruling objection by plaintiff to the introduction of photographs, defendants' exhibits 1 and 2: Plaintiff states in its brief that these photographs were taken after material changes had been made at the scene of accident and did not represent the condition of the road and land surrounding the highway. However, the only evidence we find in the record as to photographs comes, first, on cross-examination of the driver of plaintiff's bus, who testified: 'This picture looks pretty near like the surroundings there just before I got to the telephone pole and ran into it. That's what I call a shoulder,' and, second, on direct examination of Davidson, defendant and witness for defendants, who testified (Indicating): 'I say that picture is a fair representation of the conditions of the road, the entrance to Lee's Diner, the Diner itself and the landing surrounding the highway at the time of the wreck. It is all except this little building right here. There is no difference in the land or the highway or the driveway. ' Following this statement of Davidson, the photographs were offered. The court instructed the jury in effect that the photographs are not substantive evidence and are offered and received only for the purpose of illustrating the testimony of the witness, if the jury find that they do illustrate, and for no other purpose. This ruling is in keeping with decision in State v. Gardner, 228 N.C. 567, 46 S.E.2d 824, and cases there cited.

Assignments of error Nos. 6 and 7 are based upon exceptions of like numbers, to portions of the charge in which the court was stating contentions of defendant. If there were matter in the statement, not...