Hines v. Frink, 177
| Decision Date | 10 October 1962 |
| Docket Number | No. 177,177 |
| Court | North Carolina Supreme Court |
| Parties | Robert J. HINES v. Malcolm S. FRINK, Administrator of the Estate of Thomas Ray Gore, Deceased. Malcolm S. FRINK, Administrator of the Estate of Thomas Ray Gore, Deceased, v. Robert J. HINES and Donald Ray Eagle. |
S. Bunn Frink, Southport, and Isaac C. Wright, Wilmington, for appellant.
L. Gleason Allen, Napoleon B. Barefoot, Wilmington, and Dupree, Weaver, Horton & Cockman, Raleigh, for appellees.
Appellant's first assignment of error relates to the testimony of the investigating officer that the license plate on Gore's Dodge truck had been issued for an International truck which he found out later had been junked. This hearsay was, of course, incompetent and totally irrelevant. However, it is inconceivable that it could have affected the verdict. Jurors are presumed to be persons of 'sufficient intelligence'. Murphy v. Carolina Power & Light Company, 196 N.C. 484, 146 S.E. 204. Technical error will not authorize a new trial unless it appears that the objecting party was prejudiced thereby, and the burden is on him to show prejudice. Ray v. French Board Elec. Membership Corp., 252 N.C. 380, 113 S.E.2d 806. The first assignment of error is overruled.
Appellant's second assignment of error embraces his exceptions to the overruling of his motion to nonsuit the actions of Hines and Eagle against him, and to the order of the court nonsuiting his action for the wrongful death of Gore. Each of these rulings was correct.
No discussion of negligence or proximate cause is necessary to sustain the motions of Hines and Eagle to nonsuit the action of Frink, administrator, for the wrongful death of his intestate. He offered no evidence and the record is devoid of any evidence as to the age, health, habits, or earning capacity of Gore. This Court, speaking through Rodman, J., has expressly said that G.S. §§ 28-173, 28-174, which creates the right of action for wrongful death, 'does not provide for the assessment of punitive damages, nor the allowance of nominal damages in the absence of pecuniary loss. ' Armentrout v. Hughes, 247 N.C. 631, 101 S.E.2d 793, 69 A.L.R.2d 620. Even had Frink, administrator, been entitled to have the jury consider whether the negligence of Hines and Eagle proximately caused the death of his intestate, the Judge would have been required to instruct the jury that Frink, administrator, had offered no evidence tending to show any pecuniary loss resulting to the estate of Gore from his death, and that it should answer the issue of damages, on which he had the burden of proof, NOTHING. Hence, the judgment of nonsuit was proper. Jenkins v. Fowler, 247 N.C. 111, 100 S.E.2d 234.
The motions to nonsuit the actions of Hines and Eagle were made on the theory that the evidence established their contributory negligence as a matter of law. Conceding, for the purpose of these motions only, that Frink has properly pleaded contributory negligence in both actions, contributory negligence does not appear as a matter of law. The evidence of Hines and Eagle permits the legitimate inference that the Buick being driven by Eagle and the truck operated by Gore approached the intersection at approximately the same time; that the headlights of the Buick were burning and visible for three-fourths of a mile before it reached the intersection; that Eagle was driving within the maximum speed permitted by law; that as he passed the intersection warning sign he slowed down; that everything was clear as far as he could see when he proceeded into the intersection; that all of a sudden Gore drove his unlighted truck from the servient road into the path of the Buick, and a collision occurred in its lane of travel. Eagle was not required to anticipate such conduct on the part of another motorist. Carr v. Lee, 249 N.C. 712, 107 S.E.2d 544; Chaffin v. Brame, 233 N.C. 377, 64 S.E.2d 276. It cannot be said that the sole inference to be drawn from this evidence is that either excessive speed, lack of control and a failure to apply brakes, or a failure on the part of Eagle to keep a proper lookout was a proximate cause of the collision. Indeed, the more logical inference is that the unexpected appearance of the unlighted truck from a servient road was the sole proximate cause of the collision. Williamson v. Randall, 248 N.C. 20, 102 S.E.2d 381.
In his second assignment of error appellant not only included his exceptions to the rulings on the motions for nonsuit but also exception No. 7 taken to that portion of the charge in which the Judge told the jury that it would be necessary to answer the first and second issues alike. ...
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