Emanuel v. Clewis, 856
| Decision Date | 12 January 1968 |
| Docket Number | No. 856,856 |
| Citation | 272 N.C. 505,158 S.E.2d 587 |
| Court | North Carolina Supreme Court |
| Parties | Harry Ray EMANUEL, by his Next Friend, Leslie Emanuel, Plaintiff, v. Sarah CLEWIS, Defendant. |
Johnson, Hedgpeth, Biggs & Campbell, Lumberton, for defendant appellant.
Musselwhite & Musselwhite, Lumberton, for plaintiff appellee.
The motion for judgment as of nonsuit was properly denied. The evidence of the plaintiff, taken in the light most favorable to him, as it must be upon such a motion, is sufficient to support a finding that the defendant, having invited a group of small children to ride in the bed of her truck, started it before the plaintiff had an opportunity to find a suitable place to sit down and, on a road known by her to be bumpy, reached a speed of 18 miles an hour within 100 to 150 feet from the starting point, and, at that speed, drove into a deep hole causing the truck to jolt and throw the plaintiff out. This is sufficient to carry the case to the jury on the issue of her negligence. A nonsuit on the ground of contributory negligence can be granted only when the plaintiff's own evidence leads inescapably to the conclusion that he was guilty of such negligence. The defendant's evidence tending to show contributory negligence cannot be considered upon the motion for judgment of nonsuit. Pruett v. Inman, 252 N.C. 520, 114 S.E.2d 360. The issues of negligence and contributory negligence were properly submitted to the jury, which answered them in the plaintiff's favor. It is not contended that there was any error in the instructions of the court to the jury concerning the principles of law by which it should answer these issues.
There was no error in permitting the plaintiff to testify as to the speed of the truck. He was standing in the truck bed and was clearly in a position to have an informed opinion as to its speed over the 100 to 150 feet which it traveled before he fell. A fourteen year old boy, shown to have a superior scholastic record is clearly capable of judging the speed of a motor vehicle in which he is a passenger. See: Murchison v. Powell, 269 N.C. 656, 153 S.E.2d 352; Lookabill v. Regan, 247 N.C. 199, 100 S.E.2d 521; Strong, North Carolina Index 2d, Automobiles, § 46.
It was not error to strike the defendant's testimony that the plaintiff was 'an outstanding student.' This was a conclusion based upon hearsay, the defendant not purporting to have personal knowledge of the plaintiff's scholastic record or of...
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State v. Fowler
...any objection to this contention, he should have stated it at the time. State v. Thomas, supra; State v. Tart, supra; Emanuel v. Clewis, 272 N.C. 505, 158 S.E.2d 587 (1968); 7 Strong, N.C. Index 2d, Trial § 34 Additionally, defendant contends that the manner in which the trial court stated ......
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...not be considered on appeal.' State v. Virgil, 276 N.C. 217, 230, 172 S.E.2d 28, 36 (1970); State v. Fowler, supra; Emanuel v. Clewis, 272 N.C. 505, 158 S.E.2d 587 (1968). Defendant made no such objections. This assignment is Defendant next assigns as error the failure of the court to apply......
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Estrada v. Cuaron
...Davis v. Imes, 13 N.C.App. 521, 186 S.E.2d 641 (1972); Murchison v. Powell, 269 N.C. 656, 153 S.E.2d 352 (1967); Emanuel v. Clewis, 272 N.C. 505, 158 S.E.2d 587 (1968); Potts v. Brown, 452 P.2d 975 (Wyo.1969). Contra: Carpino v. Kuehnle, 54 F.R.D. 28 (D.Pa.1971), aff'd, 3 Cir., 474 F.2d 133......