Hartsell v. Strickland, 7519SC172

• Decision Date: 21 May 1975
• Docket Number: No. 7519SC172,7519SC172
• Citation: 214 S.E.2d 598,26 N.C.App. 68
• Court: North Carolina Court of Appeals
• Parties: Clyde C. HARTSELL, Jr. v. Lewis Calvin STRICKLAND.

Page 598

214 S.E.2d 598

26 N.C.App. 68

Clyde C. HARTSELL, Jr. v. Lewis Calvin STRICKLAND.

No. 7519SC172.

Court of Appeals of North Carolina.

May 21, 1975.

Hartsell, Hartsell & Mills, P.A. by Fletcher L. Hartsell, Jr., Concord, for plaintiff-appellant.

Williams, Willeford, Boger & Grady by John Hugh Williams, Concord, for defendant-appellee.

VAUGHN, Judge.

We find no prejudicial error in the exclusion of one of the witnesses' estate of defendant's speed. Even if it had been shown that the witness had a reasonable opportunity to judge defendant's speed, the excluded answer was favorable to defendant and not to plaintiff.

The remaining issue is whether the evidence, when considered in the light most favorable to plaintiff, and giving plaintiff the benefit of every reasonable inference to be drawn therefrom, is sufficient to justify a verdict in plaintiff's favor. The evidence, viewed in this manner, tended to show the following.

At approximately 3:30 on the afternoon of 10 June 1970, plaintiff, a Snap-On-Tool salesman, Don Steele and William Haynes were examining a compressor attached to Steele's pickup truck. Steele's truck was parked on the shoulder of a rural paved road 18 feet in width. The truck was near or on the edge of the pavement. It was facing a southerly direction and was 200 feet to 300 feet from the intersection of Deal Road and Highway 152. The posted speed limit was 55 miles per hour. It was a clear day and there was nothing to obstruct the view between the intersection and where the men were standing.

The men were going to hook up the impact gun to the air compressor to see if the compressor had the necessary volume to work the air gun properly. They cranked up the compressor and began examining it. It built up a head of pressure. Suddenly there was a loud explosion. Plaintiff, who was standing on the edge of the road at the left front of the compressor, was startled by the explosion and jumped backwards about two feet toward the center of the highway. As soon as plaintiff jumped back he was struck by the right front fender of defendant's automobile, which was proceeding in a southerly direction.

While examining the air compressor plaintiff was standing at the left front of the compressor, farthest from the intersection. Steele was beside plaintiff and toward the middle of the compressor, and Haynes was on the same side towards the rear of the compressor and nearest to the intersection. When plaintiff jumped back onto the...