Cline v. Atwood

• Decision Date: 04 May 1966
• Docket Number: No. 456,456
• Citation: 147 S.E.2d 885,267 N.C. 182
• Parties: Calvin C. CLINE v. Sidney Eugene ATWOOD and Buford B. Scott.
• Court: North Carolina Supreme Court

Page 885

147 S.E.2d 885

267 N.C. 182

Calvin C. CLINE v. Sidney Eugene ATWOOD and Buford B. Scott.

No. 456.

Supreme Court of North Carolina.

May 4, 1966.

Elledge & Mast, Winston-Salem, for plaintiff, appellee.

Deal, Hutchins & Minor, Winston-Salem, for defendant Scott, appellant.

EMERY B. DENNY, Emergency Justice.

This appellant assigns as error the refusal of the court below to sustain his motion for judgment as of nonsuit made at the close of the plaintiff's evidence and renewed at the close of all the evidence.

The plaintiff alleges in Paragraph 3 of his complaint that as the defendant 'Sidney Eugene Atwood operated his 1955 Ford truck in an easterly direction toward the approaching Ford, he pulled his truck over into the lefthand or northern lane of traffic. As the two vehicles approached each other in the northern lane, both the defendant, Buford Scott and the defendant, Atwood, suddenly cut their vehicles toward the southern lane of the highway, thereby causing a violent collision in which both vehicles were totally destroyed and in which the plaintiff Calvin C. Cline was seriously injured * * *.'

In Paragraph 5 of the complaint the plaintiff alleges, among other things, that Atwood 'was operating his truck while he was under the influence of intoxicating liquor to such an extent that his physical and mental faculties had been appreciably impaired, in violation of GS 20--138; that he was driving upon the highway without keeping a proper lookout * * * and without keeping the vehicle which he was driving under proper control; he failed to turn from the path of the approaching vehicle until it was impossible to avoid a collision * * *.'

Among the plaintiff's allegations with respect to the negligence of defendant Scott, it is alleged that Scott 'failed to turn his automobile from the main travelled section of the highway onto the wide shoulder and driveways which were quite ample and safe when he knew or should have known that such failure would bring injury to his passenger, the plaintiff * * *.'

The plaintiff offered in evidence the adverse examination of the defendant Scott, which examination was taken before the trial. When this adverse examination of Scott was introduced in evidence, the plaintiff made him his witness and represented that he was worthy of belief. Powell v. Cross, 263 N.C. 764, 140 S.E.2d 393; State v. Tilley, 239 N.C. 245, 79 S.E.2d 473. A party does not make his adversary his witness by taking his adverse examination, unless he offers the adverse examination, or part of it, in evidence at the trial. State v. Tilley, supra. Furthermore, when a plaintiff makes a party in the litigation his own witness, he is not allowed to impeach him by attacking his credibility, but retains the right to contradict him by the testimony of other witnesses whose testimony may be inconsistent with his. Helms v. Green, 105 N.C. 251, 11 S.E. 470; State v. Tilley, supra.

What does the testimony of the defendant Scott tend to show on his adverse examination? The evidence tends to show that the collision occurred on a straight, level portion of Highway 67 and that the defendants could see the respective vehicles involved approaching each other for about one-half mile; that defendant Scott was traveling west in the northern lane of the 22-foot paved highway at a speed of about 50 or 55 miles per hour; that the defendant Atwood was traveling eastwardly in the southern lane of said highway (at a speed of 30--35 miles per hour according to Atwood's testimony); that when Atwood's truck was about 100 feet from defendant Scott's car, Atwood turned his vehicle into Atwood's left lane in front of Scott's car. Scott further testified that when Atwood turned his truck to Atwood's left he thought he (Atwood) was turning into the Esso station. Scott further testified that when he saw Atwood's truck approaching him in his, Scott's, lane of travel, less than 100 feet away, he turned his car to the left in an effort to avoid a head-on collision; that not more than half of Scott's car had crossed the center line to Scott's left when Atwood's truck ran into the Scott automobile on its right-hand side near the windshield and the right door.

Atwood's adverse examination was also introduced in evidence by the plaintiff, and Atwood testified that he recalled nothing that occurred after he reached a point about 250 feet from Scott's car, and gave as his reason for not knowing what happened, 'because I was looking on my side of the road.' Therefore, Scott's evidence that Atwood crossed into the northern lane in front of Scott's car when the vehicles were only about 100 feet apart is uncontradicted. Moreover, Atwood, just prior to testifying with respect to the speed of the Scott car, had testified on cross-examination that '(I)t's hard to tell the speed of a car approaching me, too. I couldn't tell the speed, but I could tell he was going a lot faster than I was.'

In the case of Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808, Butner was traveling in a southerly direction on the Bethania-Rural Hall highway and the Spease truck was traveling northward. The two motor vehicles were approaching each other at night on a straight, level stretch of road with the headlights visible for a distance of three-quarters of a mile. They collided at the entrance of a side road heading westward to Tobaccoville. When the Butner car approached the 'mouth' of this...