Hoke v. Atl. Greyhound Corp.

• Decision Date: 21 May 1947
• Docket Number: Nos. 526, 532.,s. 526, 532.
• Citation: 42 S.E.2d 593,227 N.C. 412
• Parties: HOKE. v. ATLANTIC GREYHOUND CORPORATION et al.
• Court: North Carolina Supreme Court

227 N.C. 412

42 S.E.2d 593

HOKE.

v.ATLANTIC GREYHOUND CORPORATION et al.

Nos. 526, 532.

Supreme Court of North Carolina.

May 21, 1947.

[COPYRIGHT MATERIAL OMITTED].

Appeal from Superior Court, Mecklenburg County; Wm. G. Pittman, Judge.

Action D. A. S. Hoke, as Administrator of the estate of James Murray Pate, Jr., deceased, against the Atlantic Greyhound Corporation and others for intestate's wrongful death as the result of a collision between an automobile in which he was riding and named defendant's bus. Judgment for plaintiff, and defendants appeal.

No error.

See, also, N.C., 42 S.E.2d 407.

Civil action to recover damages for alleged wrongful death, G.S. §§ 28-172, 28-173.

On former appeal, 226 N.C. 692, 40 S.E. 2d 345, there is full statement of the case. It was there held that the evidence was sufficient to take the case to the jury. And the evidence on the retrial being in substantial accord with that shown in the record on such former appeal, we refer there to rather than to re-state the evidence here, --reciting in the opinion only such evidence as is pertinent in considering certain exceptions.

Upon the retrial the case was submitted to the jury on the same issues as at former trial. The jury answered the first issue as to joint and concurrent negligence in the affirmative, and the fourth issue as to contributory negligence in the negative, and assessed damages in the sum of $18,-000.

From judgment for plaintiff in accordance with the verdict, the defendants appeal to Supreme Court, and assign error.

Smathers & Smathers, of Charlotte, and Smathers & Meekins, of Asheville, for appellants Atlantic Greyhound Corporation and Yates Clyde Farris.

Frank H. Kennedy and P. D. Kennedy, Jr., both of Charlotte, for appellant Geo. W. Sharpe.

McDougle, Ervin, Fairley & Horack, of Charlotte, for plaintiff-appellee.

WINBORNE, Justice.

At the outset it is appropriate to call attention to Rule 19 (2) of the Rules of Practice in the Supreme Court, 221 N.C. 544, which provides that when there are two or more appeals in one action it shall not be necessary to have more than one transcript, but the statements of cases on appeal shall appear separately in the transcript. Two separate appeals were taken from the judgment on former trial, and separate records, each of approximately one hundred fifty pages, and each consisting of the same pleadings, the same issues, the same judgment, and the same charge, but a different narrative of the testimony of the same witnesses, were brought to this Court. Nothing was said about the irregularity at the time. But, since two separate records, of like character, and even larger, are here on this appeal, we deem it expedient to direct attention to the rule to the end that a practice may not be established.

Nevertheless, in view of the fact that both appeals are in the same action and from the same judgment on verdict finding joint and concurrent actionable negli-gence of all defendants, we consider them together, treating separately the respective assignments of error.

Appeal of defendants Yates Clyde Farris and Atlantic Greyhound Corporation:

These defendants present for consideration several assignments of error, some of which require discussion.

One of the assignments relates to the introduction in evidence of the discharge of James Murray Pate, Jr., intestate of plaintiff, from the U. S. Army. In this connection, it appears that in the course of the introduction of evidence by plaintiff testimony was elicited on cross examination of the father of intestate that the intestate entered the National Guard in 1939, and mustered into the regular army in 1940; that he served three years overseas, and returned in May, 1945; and that he had received his discharge at the time of the accident. Then after cross examination as to the military rating and rank of the intestate, the witness identified and plaintiff offered the army discharge in evidence. The court admitted it, and all defendants objected and excepted. Later in the course of the trial, the court told the jury that the court was worried about the competency of the discharge and instructed the jury that the court was of its own motion withdrawing the discharge from the consideration of the jury, and excluding it as evidence in the trial, and instructed the jury not to take it into consideration in any manner when the jury should come to consider the issues later on in the trial. All defendants object and except for that the discharge having been read to the jury, the harmful effect of it as evidence could not be removed from the minds of the jurors.

We are of opinion that the discharge was incompetent, and should not have been received into evidence. Stanley v. White-ville Lbr. Co, 184 N.C. 302, 114 S.E. 385. Nevertheless, the court having advised the jury of the error in admitting the discharge, and having withdrawn it from the consideration of the jury, and having instructed the jury not to take it into consideration in its deliberations, our decisions hold that any harm that the intro duction of it may have had, was removed. See Hyatt v. McCoy, 194 N.C. 760, 140 S.E. 807, where the authorities are assembled.

These defendants also assign as error that portion of the charge, in respect to the first issue, with reference to their liabilities, wherein the court instructed the jury that "if you find by the greater weight of the evidence" certain specific facts, "then I charge you that such acts, conduct, and omissions of the defendant Yates Clyde Farris would be negligence * * *". It is contended here that the court in using the words "would be negligence" instead of "would constitute negligence", expressed an opinion in violation of G.S. § 1-180. However, counsel in their brief concede that standing alone these assignments may not be sufficient to warrant a new trial.

However, they contend that when this instruction is taken in connection with the charge given by the court in response to questions from the jurors, reversible error appears. One juror asked, "What responsibility is a driver charged with when meeting an automobile in apparent distress? You read if I understand the laws of North Carolina, something with reference to, we'll say, the bus driver supposedly keeping himself under control or being under control, if possible. That is the point that we have at issue here". The other juror asked, "If when approaching a vehicle in distress, you are automatically charged with a certain responsibility. If, in the driver's judgment, the vehicle is not in distress, he thinks the distress of the approaching vehicle has ended, and the approaching vehicle is approaching in a normal manner, does the responsibility placed upon the driver of the first vehicle cease, such as reducing his rate of speed below the law required in North Carolina?"

In response to these questions, the court applied the rule of the prudent man. And while these defendants contend that such instructions do not answer the questions asked by the jurors, they have not brought forward exception to the refusal of the court to give special instructions requested by them in this respect. Nevertheless, the rule of the prudent man is applicable.

"The standard of conduct required in an emergency, as elsewhere, is that of the prudent man". Ingle v. Cassady, 208 N.C. 497, 181 S.E. 562, 563.

Other assignments of error brought forward by these appellants, upon due consideration, likewise fail to show cause for disturbing the judgment on verdict rendered.

Appeal by defendant George W. Sharpe: This appellant assigns as error the refusal of the court to give certain requests for specific instruction, to some of which consideration is required which is now given:

(1) That the court erred in refusing to instruct the jury as follows: That if the jury should find that the bus was being operated at a rapid rate of speed around a curve, and that it was on its left side of the highway, and that if the jury should further find that Carol Sharpe was operating the car belonging to defendant, George Sharpe, to her right of the center line of the highway, then the law would be that Carol Sharpe did not have the duty of stopping or taking other action to avoid an accident up until such time that it appeared that a collision would be unavoidable, for the reason that the said Carol Sharpe had the right to assume, up to the point of collision, that the said bus would assume its proper and rightful position to its right of the center of the highway in passing.

The driver of vehicles proceeding in opposite directions and meeting are required by statute, G.S. § 20-148, to pass each other to the right, each giving to the other at least one half of the main-traveled portion of the roadway as nearly as possible. In applying this rule, this Court has held in numerous cases that the driver of each vehicle, who is himself observing the rule has right, ordinarily, to assume, and to act upon the assumption that the driver of the other vehicle will also observe the rule and turn to his right so that the two vehicles may pass each other in safety. Shirley v. Ayers, 201 N.C. 51, 158 S.E. 840; Cory v. Cory, 205 N.C. 205, 170 S.E. 629; James v. Carolina Coach Co., 207 N.C. 742, 178 S.E. 607; Hancock v. Wilson, 211 N.C. 129, 189 S.E. 631; Guthrie v. Gocking, 214 N.C. 513, 199 S.E. 707; Newbern v. Leary, 215 N.C. 134, 1 S.E.2d 384; Brown v. Southern Paper Products Co., 222 N.C. 626, 24 S.E.2d 334, 336.

However, the right of a motorist to assume that a driver of a vehicle coming from the opposite direction will obey the law and yield one half the highway, or turn out in time to avoid collision, and to act on such assumption in determining his own manner of using the road, is not absolute. It may be qualified by the particular circumstances existing at the time, --such as "the proximity, position and movement of the other vehicle and the condition of the road as to the usable width and the like, " Brown v. Southern Paper...