Gilland v. Carolina Crushed Stone Co.
| Decision Date | 03 June 1925 |
| Docket Number | 467. |
| Citation | 128 S.E. 158,189 N.C. 783 |
| Parties | GILLAND v. CAROLINA CRUSHED STONE CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklenburg County; Shaw, Judge.
Action by Kenneth Gilland, by his next friend, L. R. Gilland against the Carolina Crushed Stone Company. Judgment for plaintiff, and defendant appeals. No error.
Refusal of motion for nonsuit at close of plaintiff's evidence waived.
Civil action to recover damages for personal injuries. Plaintiff on November 5, 1923, was riding a bicycle on Tryon street in the city of Charlotte. At the same time a heavy motor truck owned and operated by defendant, and loaded with crushed stone, was being driven in the same direction as that in which the bicycle was going. The bicycle was between the moving truck and the curb of the sidewalk. As a result of a collision between the truck and the bicycle plaintiff was thrown from the bicycle, under the wheels of the truck, thus sustaining injuries which resulted in the amputation of his arm.
Plaintiff alleges that:
"The truck, while being so driven along South Tryon street in said city, was, without warning, suddenly, willfully, recklessly, negligently, and carelessly turned and driven against and over the person and against the bicycle upon which plaintiff was riding; that, at the time the said truck was so turned and driven against him and over him and against his bicycle, plaintiff was riding his bicycle along the street in a careful and prudent manner; that he was keeping near the curb at the right-hand side of said street as required by law and by the traffic regulations of the city of Charlotte; that the driver of defendant truck, well knowing the danger to the plaintiff, his attention having been called to such danger, or by the exercise of due diligence and by proper attention should have known the danger to the said plaintiff, suddenly and without warning to said plaintiff, and without keeping any proper lookout, drove defendant's truck in a reckless and negligent manner toward the right side of the street and against and over the plaintiff's person and against his bicycle as aforesaid, striking plaintiff's left leg and striking the front wheel of plaintiff's bicycle, causing plaintiff to fall under defendant's truck, and crushing his left arm under the wheel of said truck, and otherwise bruising, lacerating, and permanently injuring his body in numerous places."
Defendant, in its answer, denies that the cause of plaintiff's injury was as alleged, and says:
"That the defendant was operating a motor truck loaded with stone, and the said truck was running north on South Tryon street, on the right-hand side of the street, when as defendant is informed and believes, and therefore alleges, plaintiff, riding a bicycle, rode up alongside of the truck and grasped with one hand the side of said truck, operating his bicycle with the other hand; that while so situated his bicycle skidded out from under him, and he was thrown to the ground, his left arm being run over by the rear wheel of the truck, crushing same and necessitating the amputation of said arm; that the presence of plaintiff at rear of the truck was unknown to the driver of said truck, plaintiff being in such position as to make it impossible for the said driver to see him."
Defendant expressly denies that plaintiff's injury was the result of its negligence, and pleads the contributory negligence of plaintiff as a defense to his action against it.
Upon the verdict of the jury, judgment was rendered that plaintiff recover of defendant the sum of $15,000 and the costs of the action. From this judgment defendant appealed to the Supreme Court.
J. Laurence Jones and Jas. A. Lockhart, both of Charlotte, for appellant.
Wade H. Williams and Preston & Ross, of Charlotte, for appellee.
Plaintiff, while testifying as a witness in his own behalf, in response to the direction of his counsel to tell the court and jury how he was injured, said in part:
Defendant objected to the statement contained in the last sentence of the foregoing quotation, and noted an exception. The court said, "Yes; don't tell that." This is made the basis of defendant's first assignment of error.
Defendant did not move to strike from the record the statement objected to, nor request the court to instruct the jury that this statement should not be considered by them as evidence. Conceding that the objection to the statement was well taken, the assignment of error cannot be sustained. The court, in effect, sustained defendant's objection, and the jury must have so understood. If defendant desired a more explicit ruling upon its objection, or a more explicit instruction to the jury, it should have moved the court to strike the objectionable statement from the record, and requested an instruction to the jury that the statement of the witness, as to what somebody said at the time he was thrown under the wheels of the truck, should not be considered as evidence. Defendant did neither. The exception is not directed to any action of the court, and is not sufficient to support an assignment of error to be considered in this court, upon appeal.
If defendant deemed the statement of the witness, which was not in response to the question directed to him by his counsel, but voluntarily made, incompetent, and prejudicial, it should have directed its objection to the court, accompanied by a motion to strike the objectionable statement from the record, and by a request for an instruction, if desired, to the jury that the statement had been stricken from the record and should not be considered as evidence. To a ruling upon this motion, an exception would lie as basis for an assignment of error upon appeal to this court. Huffman v. Lumber Co., 169 N.C. 259, 85 S.E. 148; Wooten v. Grand United Order, 176 N.C. 52, 96 S.E. 654; State v. Green, 187 N.C. 466, 122 S.E. 178.
I. O. Eason, witness for defendant, testified that he was the driver of defendant's truck on the occasion of the collision when plaintiff was injured. His testimony on his direct examination tended to contradict the testimony of witnesses for plaintiff and to show the facts to be as contended by defendant. On cross-examination he testified that he lived in Charlotte at time plaintiff was injured, but at Nicholsville, Ky., at time of trial. He further testified that he owed some bills in Charlotte which he had not paid, because he had not had the money with which to pay them. Thereupon the cross-examination proceeded as follows:
"Q. Well, who furnished you the money to come all that long distance, from Nicholsville, Ky., back here, if you did not have money enough to pay any of your grocery bills? A. The company.
Q. Which company? A. The insurance company, I suppose.
Q. How much did they give you to come back and testify? A. They were just going to pay my railroad fare back.
Q. And how much per day were they going to pay you? A. I don't know; necessary expenses, I suppose.
Q. I will ask you if at one or two others terms of court here if you did not refuse to come back because they had not made arrangements satisfactory to you? A. No, sir.
Q. Well you did not come? A. No, sir.
Q. I will ask you if the insurance company had not notified you that the case was on for trial? A. Yes, sir.
Q. And I will ask you if you did not refuse to come back? A. No, sir; I have not.
Q. Why did you not come back? A. I had no way to come.
Q. In other words, you and they had not agreed on the money? A. No, sir.
Q. And, as soon as you did agree on the money, then you came back? A. No, there has been no agreement on the money.
Q. You got the money did you? A. They just paid my way from there here.
Q. And you haven't got anything else? A. No, sir.
Q. Did they send you a railroad ticket or send you cash? A. The fellow come from Cincinnati down there, an insurance man, and got me a ticket.
Q. I will put you on your guard and ask you if you did not tell Col. Lockhart this morning, one of the insurance company's lawyers--
By Mr. Jones: If your honor please, I make a motion that a juror be withdrawn and a mistrial ordered in this case. (Motion denied; defendant excepts.)
Mr. Preston: I ask permission of the court to withdraw the word 'Insurance.' (Permission granted.)"
No objection was made by defendant to questions or answers...
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