Honeycutt v. Strube, 524

• Decision Date: 17 January 1964
• Docket Number: No. 524,524
• Citation: 261 N.C. 59,134 S.E.2d 110
• Parties: Laura Taylor HONEYCUTT, by her next friend, A. A. Honeycutt, Plaintiff, v. Jerry Wayne STRUBE and Ralph Neil Strube, Defendants. A. A. HONEYCUTT, Plaintiff, v. Jerry Wayne STRUBE and Ralph Neil Strube, Defendants.
• Court: North Carolina Supreme Court

Page 110

134 S.E.2d 110

261 N.C. 59

Laura Taylor HONEYCUTT, by her next friend, A. A. Honeycutt, Plaintiff, v. Jerry Wayne STRUBE and Ralph Neil Strube, Defendants.

A. A. HONEYCUTT, Plaintiff, v. Jerry Wayne STRUBE and Ralph Neil Strube, Defendants.

No. 524

Supreme Court of North Carolina.

Jan. 17, 1964

Craighill, Rendleman & Clarkson, Charlotte, Hartsell, Hartsell & Mills, and John R. Ingle, Charlotte, for plaintiff appellees.

Williams, Willeford & Boger, Concord, for defendant appellants.

BOBBITT, Justice.

The occupants of the Honeycutt car were Mrs. Honeycutt and a little boy (aged fifteen months) whom she was keeping. Since the collision, as a result of the brain injury she received, Mrs. Honeycutt has been and is now unconscious, unable in any respect to take care of herself. She is fed artificially. Artificial means are required for the functioning of her kidneys and bowels. Constant nursing has been and is required. In the opinion of the physician who has treated her from the day she was injured, 'the prognosis is completely hopeless as far as ever recovering any consciousness or ever becoming aware of her surroundings. * * * she has complete, total disability as a result of the wounds which I saw that she had on the 6th day of September, 1960'.

The foregoing explains (1) why Mrs. Honeycutt was not and could not be a witness and (2) why this action is being prosecuted in her behalf by a next friend. It is noted that defendants do not assign error in respect of the amount of damages awarded in either case.

Defendants assign as error (1) the denial of their motions for judgments of involuntary nonsuit, (2) the admission of certain testimony as to the speed of the Sturbe car, and (3) the failure of the court to apply the law to the facts in the instructions given the jury with reference to the contributory negligence issue.

No person who saw the collision testified. The evidence indicates there was no eye witness other than the occupants of the two cars.

There was evidence tending to show the following:

The Reverend Howard Taylor lives on the Roberta Mill Road approximately one mile south of the Meadow Branch bridge. On September 6, 1960, about 11:00 a. m., the Strube car, a 1956 dark blue Ford, headed toward Concord, approached and passed the Taylor home, attracting attention by the noise of its 'loud mufflers.'

Mrs. Nancy Easley lives on the Roberta Mill Road, 'approximately middleways' between the home of the Reverend Howard Taylor and the Meadow Branch bridge. Mrs. Easley's testimony includes a statement that she lived 'a little under a quarter of a mile from the Meadow Branch bridge. ' Approaching the bridge from the south, Mrs. Easley's home is on the left side of the road. Her attention was attracted by the roar of the motor of 'a '55 or '56 model dark blue Ford' which, in her opinion, approached and passed her house at a speed of '(a)round eighty miles an hour.' Mrs. Easley testified it passed her house 'approximately between quarter to eleven and eleven o'clock' on the morning of September 6, 1960. No other car with a loud muffler passed her home that morning.

Mrs. Rachel Crisco lives on the Roberta Mill Road 'at least 300 feet' south of Meadow Branch bridge, 'on the left going towards Concord. ' A 'few seconds' before the collision, a car, headed toward Concord, 'whizzed by' Mrs. Crisco's home, attracting her attention by the loud and unusual 'noise' and 'racket' it was making. 'Right after' the car passed, Mrs. Crisco heard 'the crash.' She testified: 'It sounded like it was just tearing it all to pieces. ' Mrs. Crisco went to the road. From there she saw 'the baby' standing 'on the edge of the bridge. ' She did not go to the scene of the collision until after an ambulance had taken Mrs. Honeycutt to the hospital.

Mr. and Mrs. William Taylor saw and identified the Strube car while standing in the front yard of the Reverend Howard Taylor. They had stopped while on their way from Roberta to Concord and were getting into their car when the Strube car passed. Resuming their trip, they arrived at the scene of collision 'about two minutes' after the Strube car had passed the Taylor home. Meanwhile, the collision had occurred. Upon arrival at the scene, one Jerry Cochrane 'was picking up the baby about middle way of the bridge. ' Jerry Cochrane handed the baby to Mrs. Taylor.

In addition to the foregoing, evidence (set forth below) descriptive of the contour of the highway south of the Meadow Branch bridge and of the consequences of the impact bears upon whether the Strube car was being operated at excessive and unlawful speed.

It seems appropriate now to consider defendants' assignment of error based on their exception to the admission over their objection of the opinion evidence of Mrs. Easley as to the speed of the "55 or '56 model dark blue Ford,' with loud mufflers, that passed her home headed toward Concord about 11:00 a. m. on September 6, 1960.

Defendants contend the opinion testimony of Mrs. Easley was inadmissible on account of 'remoteness, lack of observation, failure of identity, and lack of foundation.'

'It is a general rule of law, adopted in this State, 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, such as an automobile. ' Lookabill v. Regan, 247 N.C. 199, 201, 100 S.E.2d 521, 522, and cases cited; Hicks v. Love, 201 N.C. 773, 161 S.E. 394.

There was plenary evidence that the dark blue Ford ('55 or '56), the subject of Mrs. Easley's testimony, was the Strube car. There was ample foundation for her opinion in that, her attention having been attracted by the roar of the motor, she observed the Strube car as it approached, as it passed and as it moved on toward the Crisco home and the Meadow Branch bridge. As to remoteness, we think the evidence affords a sufficient basis for a finding that there was no appreciable interval between the time the Strube car passed from Mrs. Easley's vision until the collision. The approach of the Strube car attracted the attention of Mrs. Crisco in the same manner it had attracted Mrs. Easley's attention and '(r)ight after' it passed Mrs. Crisco's home the crash was heard. Too, when the Taylors arrived at the scene of collision, 'about two minutes' after they saw the Strube car pass the home of the Reverend Howard Taylor, sufficient time had elapsed for Jerry Cochrane to get to the bridge and pick up the baby.

In our view, the opinion testimony of Mrs. Easley was not inadmissible on account of remoteness or otherwise. Defendants' contentions bear on the weight rather than the competency of this testimony. Decisions supporting the view that Mrs. Easley's opinion testimony was not inadmissible on the ground of remoteness include the following: State v. Leonard, 195 N.C. 242, 251, 141 S.E. 736; State v. Peterson, 212 N.C. 758, 194 S.E. 498; Wilson v. Camp, 249 N.C. 754, 107 S.E.2d 743; Adkins v. Dills, 260 N.C. 206, 132 S.E.2d 324. The only case cited by defendants is Corum v. Comer, 256 N.C. 252, 123 S.E.2d 473. Suffice to say, the law as stated therein is in accord with present decision but the facts are quite different.

All testimony concerning the Honeycutt car relates to physical facts observed after the collision. Plaintiffs' allegation that the Honeycutt car was brought 'to a stop, or substantially to a stop,' prior to collision, was denied by defendants. There is no evidence, unless inferences from physical facts, bearing upon whether...