Davis v. Long

• Citation: 126 S.E. 321,189 N.C. 129
• Decision Date: 31 January 1925
• Docket Number: 334.
• Parties: DAVIS v. LONG.
• Court: North Carolina Supreme Court

126 S.E. 321

189 N.C. 129

DAVIS v. LONG.

No. 334.

Supreme Court of North Carolina

January 31 1925

Appeal from Superior Court, Person County; Brown, Judge.

Action by J. B. Davis against M. R. Long. Judgment for plaintiff and defendant appeals. No error.

Charge as to duty of automobile driver on approaching intersection and as to negligence and contributory negligence, as whole held correct.

The plaintiff brought this action against the defendant to recover damages he sustained in an automobile collision. The plaintiff contends that on Sunday evening, March 4, 1923 about 5:30 o'clock p. m., he was returning home in a Ford automobile with his two little boys, having taken his wife to her sister's; that he was driving his car on the right-hand side of Main street in Roxboro, going south; that just before he got to New street, the turning place to go to his home, a fellow ran up behind him and blew his horn and did so again; that he got to the place to make the turn at New street, and dropped his hand out and looked in front and defendant's car was approaching about 100 yards away; that he threw his left hand out on the side he was turning to make the turn, and viewed the street he had to make the turn in, and threw his eyes around to look at the man behind, and when he turned around again defendant's car was in 6 or 8 feet from him. He testified: "If that car had been shot out of a rifle, it would not have looked like it was coming any faster into my car." That he was running very slow, and his left-hand front wheel was in a foot or a foot and a half of the curbing or gutter when defendant's car hit him. His car was abount 15 yards from New street when he saw defendant up the street. Defendant's car was going at least 45 miles an hour.

M. R. Long, the defendant, contended: That he and his wife and two children, Mr. and Mrs. Boatwright and child, and Mr. Watts Norton, were out riding for pleasure. That he was coming into Roxboro and going north, and saw the plaintiff in his auto coming at a very reasonable rate in the opposite direction, on the right-hand side of the street. That he had a plain and unobstructed view of this little alley (New street). He saw no one coming out, and had no reason to presume that this car of plaintiff's would turn. He thought it was going to continue in the same direction in which it was going. He testified: "When I got in about 30 feet of the car, it suddenly swerved across in front of me, and I had very little time to do anything." He jammed on the brakes as quickly as he could, and did everything to avoid the collision. He did not see plaintiff give any signal, he could not say how fast he was going, somewhere between 15 or 20 miles an hour. Plaintiff was looking behind and did not know where he was going. Plaintiff did not come up and make a turn as you are supposed to do at a street intersection. Defendant was driving a Packard car, and with the passengers weighed about 6,000 pounds.

The usual issues of negligence, contributory negligence, and damages were submitted to the jury, and found in favor of plaintiff. Judgment was rendered in favor of plaintiff. Defendant made exceptions, assigned numerous errors, and appealed to the Supreme Court.

Stacy and Connor, JJ., dissenting.

Luther M. Carlton, of Roxboro, and Wm. P. Bynum, F. P. Hobgood, Jr., and Sidney S. Alderman, all of Greensboro, for appellant.

C. A. Hall, of Roxboro, and Pou & Pou and J. W. Bailey, all of Raleigh, for appellee.

CLARKSON J.

Defendant made a motion for judgment as in case of nonsuit at the close of plaintiff's evidence, and at the close of all the evidence. C. S. § 567. The court below refused these motions, and in this we think there was no error.

On a motion to nonsuit, the evidence is to be taken in the light most favorable to plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom. Christman v. Hilliard, 167 N.C. 6, 82 S.E. 949; Oil Co. v. Hunt, 187 N.C. 157, 121 S.E. 184; Hanes v. Utilities Co., 188 N.C. 465, 124 S.E. 866.

In the progress of the trial the court below permitted a witness, Louis Daniel, to testify concerning the reputation of defendant, Long, that his character was good, but he had the reputation of being a fast driver. The court below having excluded the question as to defendant's reputation for fast driving, defendant duly excepted and assigned this as error. We do not think this assignment of error can be sustained.

In Edwards v. Price, 162 N.C. at page 244, 78 S.E. 145, Clark, C.J., gives the rule as follows:

"The party himself, when he goes upon the witness stand, can be asked questions as to particular acts impeaching his character, but as to other witnesses it is only competent to ask the witness if he 'knows the general character of the party.' If he answers 'No,' he must be stood aside. If he answers 'Yes,' then the witness can, of his own accord, qualify his testimony as to what extent the character of the party attacked is good or bad. The other side, on cross-examination, can ask as to the general character of the party for particular vices or virtues. But it is not permissible either to show distinct acts of a collateral nature nor a general reputation for having committed such specified acts. McKelvey, Ev. §§ 123, 125; 1 Gr. Ev. § 461b."

A witness, Babe Long, testified for plaintiff:

"I live on farm in this county. Know the defendant, Matt Long, and Mr. Davis. Mr. Long's character and reputation is good.

Q. What is his reputation for driving?" Objection by defendant. In sustaining defendant's objection, the court again stated that it was not competent to ask the witness about defendant's reputation concerning a particular subject, but that witness could say his character was good or bad, or could qualify it. Witness then said, "He is a fast driver." And to this answer there was no objection and no motion made to strike it out. "I have known Mr. Davis all of his life and his character is good."

With no objection by defendant to Babe Long's testimony, or to practically the same evidence given by Louis Daniel, we can see no prejudicial error if the testimony of Daniel had been error.

Exceptions and assignments of error were made to the following remarks of the court below when charging the jury:

"It was said to you by one of the counsel, an automobile is a recent--comparatively recent--invention, and it seems as if it had taken possession of the whole country. I doubt very much whether it has been a good invention or not. My personal opinion is that the country would be better off if it had never existed, but that hasn't anything to do with this case. * * * In fact, there are a great many who think that an automobile is more dangerous than a railroad engine, because a railroad engine goes on a track and people can see the track and they know where they are when they are on a railroad track, but an automobile comes along with a very little noise, with great rapidity, and it may kill a man or seriously injure him almost before he knows it."

The remarks of the court below in the charge was a matter of common knowledge and a general statement of the experience of men in general. The remarks could not be prejudicial. The reference was to automobiles in general, and applied to both parties, who owned them. We do not think the remarks come within the condemnation of C. S. § 564, that no judge--

"shall give an opinion whether a fact is fully or sufficiently proven, that being the true office and province of the jury; but he shall state in a plain and correct manner the evidence given in the case, and declare and explain the law arising thereon."

As said by Nash, C.J., in Nash v. Morton, 48 N.C. p. 6: "It is extremely difficult, very often, to say where duty stops and wrong begins." We do not construe the remarks made as wrong or reversible error.

The other exceptions and assignments of error are as follows:

"Because the court below charged the jury: 'Now, it was the defendant's duty, Mr. Long's duty, when he was approaching this intersecting street to slow down his machine to ten miles an hour.' 'Now, it was the defendant's duty when he approached the limits of the town and approached this intersecting New street to keep a close lookout, to slow down his car, and not run faster than 10 miles an hour, and if he failed to do that, then he is guilty of negligence.' Because his honor charged the jury: 'And you will answer the second issue 'No.' Because his honor in his charge failed to define negligence and contributory negligence."

These assignments of error bring us down to the main controversy in the case. Taken alone they may be subject to criticism, but the charge must be considered and construed as a whole and not disjointedly. Mangum v. Railroad, 188 N.C. 701, 125 S.E. 549.

The evidence succinctly, on the part of plaintiff, was that he was going south in a Ford auto on Main street; that he heard a horn blow behind him, anl looked back, and then looked in front, and saw defendant 100 yards away. He put his hand out on the left side of the car the way he was turning, and started into New street, and was struck by defendant, whose car was coming like a "shot out of a rifle." On the other hand, the defendant's evidence was that defendant had no reason to presume that plaintiff would turn into "this little alley" (New street), but would continue in the direction he was going. He saw no hand thrown out to give anybody warning, and when he was in 30 feet of defendant's car the plaintiff suddenly swerved across in front of him, and he did his utmost to avoid the collision and put on brakes. Plaintiff was looking behind him, and did not know where he was...