Hicks v. Love

• Decision Date: 09 December 1931
• Docket Number: 519.
• Citation: Hicks v. Love, 201 N.C. 773, 161 S.E. 394 (N.C. 1931)
• Parties: HICKS v. LOVE. BRUTON v. SAME.
• Court: North Carolina Supreme Court

161 S.E. 394

201 N.C. 773

HICKS v. LOVE.

BRUTON v. SAME.

No. 519.

Supreme Court of North Carolina

December 9, 1931

Appeal from Superior Court, Montgomery County; Walter E. Moore Judge.

Actions by J. D. Hicks, administrator of O. L. Hicks, against J. D Love, and by R. L. Bruton against J. D. Love.From judgments for plaintiffs, defendant appeals.

No error.

Instruction regarding concurrent negligence of motorists in collision held properly refused, where respective views of litigants on such issue were presented in other instructions.

On Sunday, August 17, 1930, Lindsay Bruton, Cora Campbell(since married to Lindsay Bruton), O. L. Hicks, and Essie Hall were traveling in a Ford touring car on HighwayNo. 80 in Stanly county; Bruton and Miss Campbell occupying the front seat and Hicks and Miss Hall the other.Hicks proposed that they stop at a café which was on the left side of the highway and get something to eat.Bruton turned the car to the left and it was struck by a Dodge sedan driven by Robert Love, a minor with the consent of his father, J. D. Love, the defendant.The two cars were going in the same direction, the Dodge following the Ford; they stopped 69 feet from the place of collision.Hicks suffered injuries which resulted in his death.The Ford was damaged.Suit was brought by the administrator of Hicks to recover damages for his death and by R. L. Bruton, the owner of the Ford car, for its impaired value.Each complaint sets out acts of negligence which are supported by the plaintiffs' evidence.The defendant introduced evidence in contradiction.By consent the two cases were tried together upon separate issues.In each case the jury answered the issues of negligence, contributory negligence, and damages in favor of the plaintiff.The contentions of the parties so far as they affect the controversy are stated in the opinion.

Armstrong & Armstrong, of Troy, for appellant.

R. T Poole, of Troy, for appellees.

ADAMS J.

The record contains eighty-two assignments of error, nineteen of which relate to evidence tending to show the speed of the Dodge sedan immediately before the collision occurred.Subject to the defendant's exception, several witnesses who saw the sedan and at the time were impressed by its speed were permitted to express their estimate, some saying that in their opinion it was running at the rate of fifty miles an hour and others at a rate not less than sixty.

These exceptions raise the question whether the court committed error by admitting the evidence without requiring preliminary testimony as to the observation of the witnesses, their experience in driving automobiles, and the knowledge upon which they based their judgment.With respect to the first ground it may be said that all these witnesses rested their opinion upon their personal observation of the sedan at the time spoken of; so the specific question is whether a nonexpert witness may testify as to the speed of an automobile without antecedent qualification of his competency to express an opinion on this point.

It is a rule of evidence that where special experience is held to be necessary the possession of the required qualifications by a particular person offered as a witness must be expressly shown by the party offering him.Wigmore on Evidence, § 560.But Wigmore says: "There are a variety of rulings on miscellaneous topics, holding that a lay witness suffices; the topics that seem to have called for frequent decision being those of the speed of a train or other vehicle and the existence of a state of intoxication."Section 571.In his Commentaries on Evidence, § 1264, Jones cites a large number of cases in support of the rule which he states as follows: "A person of ordinary intelligence, having opportunity for observation, is competent to testify as to the speed at which an automobile was being operated at a given time.The rate of speed of an automobile on a public highway is a matter of which people generally have some knowledge.It is not a matter exclusively of expert knowledge or skill.As above stated, where the rate of speed of such a vehicle is material in an action, any person of ordinary ability and means of observation who may have observed the vehicle may give his estimate as to the rate of speed at which it was moving.The extent of his observation goes to the weight of his testimony."In the annotation appended to Lewis v. Miller,70 A. L. R. 532, 540, where many cases are assembled, it is said: "It is a general rule, as to which there is little, if any, conflict, and reaching back to a time long before automobiles came into use, that any person of ordinary intelligence, who has had an opportunity for observation, is competent to testify as to the rate of speed of a moving object.This rule is held applicable to the speed of automobiles or motorcycles, any intelligent person who saw the machine at the time in question being held competent to testify as to its speed."

When the opinion of a witness is based upon the ordinary observations of mankind in the everyday affairs of life, when no great amount of technical training is necessary, it is not always essential for the witness to state his previous experience.It is the better practice for him to do so, but the accuracy of his impressions and their evidential value are subject to the test of cross-examination and are matters for the jury.

A divergent view is entertained by some of the courts, as shown by the cases cited in the appellant's brief; but this court has adopted the rule heretofore stated.In Potter v. Dixie Transit Co.,196 N.C. 824, 146 S.E. 709, a nonexpert witness, who had not qualified himself by a statement of his previous observation and experience, was permitted to testify after objection as to the speed of a bus traveling on the highway, and it was held that there...