Hunt v. Wooten

• Decision Date: 12 June 1953
• Docket Number: No. 383,383
• Citation: 238 N.C. 42,76 S.E.2d 326
• Court: North Carolina Supreme Court
• Parties: HUNT, v. WOOTEN et al

Page 326

76 S.E.2d 326

238 N.C. 42

HUNT, v. WOOTEN et al.

No. 383

Supreme Court of North Carolina

June 12, 1953

Thos. J. White, Kinston, for the plaintiff, appellee.

Sutton & Greene, Kinston, for the defendants, appellants.

ERVIN, Justice.

The defendants concede with commendable candor the sufficiency of the plaintiff's evidence to make out a case of actionable negligence on their part. They lay claim to a new trial, however, on the ground that the presiding judge committed reversible error in admitting testimony, in failing to submit an issue of contributory negligence, and in charging the jury.

As a general rule, an appellant must establish these three propositions by the case on appeal to obtain a new trial for error of the trial judge in admitting evidence:

1. That he objected to the admission of the evidence in the trial court. Carpenter v. Boyles, 213 N.C. 432, 196 S.E. 850; Ferebee v. Berry, 168 N.C. 281, 84 S.E. 262; Sykes v. Everett, 167 N.C. 600, 83 S.E. 585, 4 A.L.R. 751; Peyton v. Hamilton-Brown Shoe Co., 167 N.C. 280, 83 S.E. 487; Hooper v. Hooper, 165 N.C. 605, 81 S.E. 933.

2. That the evidence was inadmissible in law because it was incompetent (Ballard v. Ballard, 230 N.C. 629, 55 S.E.2d 316; Robbins v. Alexander, 219 N.C. 475, 14 S.E. 2d 425), or immaterial (Sprout, Waldron & Co. v. Ward, 181 N.C. 372, 107 S.E. 214; Heileg v. Dumas, 69 N.C. 206; Devries v. Phillips, 63 N.C. 207; Madden v. Porterfield, 53 N.C. 166; Adams V. Clark, 53 N.C. 56), or irrelevant, State ex rel. Freeman v. Ponder, 234 N.C. 294, 67 S.E.2d 292.

3. That the evidence was prejudicial to his cause of action or defense. Collins v. Lamb, 215 N.C. 719, 2 S.E.2d 863; Williams v. Charles Stores Co., Inc., 209 N.C. 591, 184 S.E. 496; Rierson v. Carolina Steel & Iron Co., 184 N.C. 363, 114 S.E. 467; Jenkins v. Long, 170 N.C. 269, 87 S.E. 47; Morgan v. Royal Fraternal Association, 170 N.C. 75, 86 S.E. 975; In re Rawlings' Will, 170 N.C. 58, 86 S.E. 794; Lupton v. Southern Express Co., 169 N.C. 671, 86 S.E. 614; Atlantic Fruit Distributors v. Foster, 169 N.C. 39, 85 S.E. 130; Hodges v. Wilson, 165 N.C. 323, 81 S.E. 340; In re Will of Parker, 165 N.C. 130, 80 S.E. 1057.

This genral rule is subject to an exception not germane to the instant case. Presnell v. Garrision, 122 N.C. 595, 29 S.E. 839; Hooper v. Hooper, supra.

The defendants have no legal ground for their present complaint that the presiding judge erred in admitting the opinion evidence of the plaintiff's witness J. C. Grady in relation to the effect of the depletion of the battery upon the headlights of an Oldsmobile car similar to the one involved in the accident. This is true because they did not object at the trial to the admission of this evidence. When the case on appeal is read aright, it appears that the defendants took only two objections during the examination of Grady. One of them was addressed to the preliminary finding of fact of the presiding judge that Grady was competent to testify as an expert in respect to automobile batteries. The other was directed to an unanswered question put to Grady by counsel for plaintiff. The finding of the presiding judge as to the competency of Grady to testify as an expert was sustained by evidence at the trial, and in consequence is not subject to attack on this appeal. State v. Cofer, 205 N.C. 653, 172 S.E. 176; Nance v. Merchants' Fertilizer & Phosphate Co., 200 N.C. 702, 158 S.E. 486; Rangely v. Harris, 165 N.C. 358, 81 S.E. 346; Horne v. Consolidated R. Light & Power Co., 144 N.C. 375, 57 S.E. 19; Allen v. Durham Traction Co., 144 N.C. 288, 56 S.E. 942; Geer v. Durham Water Co., 127 N.C. 349, 37 S.E. 474.

The defendants also assign as error rulings of the presiding judge allowing one of the plaintiffs attending physicians, Dr. Oscar W. Crantz, to express his opinion as to what percentage of the plaintiff's face was disfigured by her injuries; letting the plaintiff's aunt, Mrs. M. H. Clayton, point out to the jury places where implanted skin had been grafted upon the plaintiff's face to minimize the disfigurement resulting from her injuries; permitting the plaintiff to exhibit in court as demonstrative or real evidence the hydrant struck by the Oldsmobile; and receiving in evidence the mortuary tables embodied in G.S. § 8-46, the annuity tables incorporated in G.S. § 8-47, photographs of the plaintiff taken before and after the injury, and a photograph of the hydrant.

The testimony of Dr. Crantz and Mrs. Clayton was rightly received under the rule that in an action to recover damages for a personal injury tortiously inflicted, evidence as to the physical condition of the injured plaintiff both before and after the injury is admissible to show the character extent, and probable effect of the injury. Solomon v. Koontz, 189 N.C. 837, 127 S.E. 516; Jordan v. Interurban Motor Lines, 182 N.C. 559, 109 S.E. 566; Bowen v. Seaboard Air Line Ry., 147 N.C. 136, 60 S.E. 898; 25 C.J.S., Damages, § 147. Dr. Crantz was a medical expert testifying to matters within his personal knowledge. Spivey v. Newman, infra; Williams v. Charles Stores Co., Inc., supra. Mrs. Clayton was merely describing the physical appearance of the injured plaintiff as observed by a nonexpert or lay witness. Bowen v. Seaboard Air Line Ry., supra; 32 C.J.S., Evidence, §§ 467, 513.

The testimony tended to show that the plaintiff's injuries are permanent in character. This being true, it was proper for the presiding judge to permit the plaintiff to introduce and the jury to consider the mortuary tables embodied in G.S. § 8-46. Bullock v. Williams, 212 N.C. 113, 193 S.E. 170; Hubbard v. Southern R. Co., 203 N.C. 675, 166 S.E. 802; Odom v. Canfield Lumber Co., 173 N.C. 134, 91 S.E. 716; Sledge v. Weldon Lumber Co., 140 N.C. 459, 53 S.E. 295; Georgia Automatic Gas Co. v. Fowler, 77 Ga.App. 675, 49 S.E.2d 550; Avance v. Thompson, 387 Ill. 77, 55 N.E.2d 57; Louisville, N. A. & C. R. Co. v. Miller, 141 Ind. 533, 37 N.E. 343; Fournier v. Zinn, 257 Mass. 575, 154 N.E. 268; Banks v. Braman, 195 Mass. 97, 80 N.E. 799; Daniels v. Boston & M. R. Co., 184 Mass. 337, 68 N.E. 337. The presiding judge instructed the jury in conformity with approved precedents that the mortuary tables are merely evidentiary on the question of expectancy. Bullock v. Williams supra; Odom v. Canfield Lumber Co., supra.

The plaintiff's witness Frank Crary identified the hydrant offered in evidence as the hydrant struck by the Oldsmobile, and testified with positiveness that the hydrant had not been altered in any way since the accident. This being so, the presiding judge did not err in permitting the jury to inspect the hydrant. The inspection of this object was calculated to enable the jury to understand the evidence, and to realize more completely its cogency and force. State v. Rogers, 233 N.C. 390, 64 S.E.2d 572, 28 A.L.R.2d 1104; State v. Speller, 230 N.C. 345, 53 S.E.2d 294.

The photographs of the plaintiff antedating and following the injury were rightly received in evidence under the rule that whenever it is relevant to describe a person, photographs of such person are admissible for the purpose of explaining the evidence of the witnesses relating to his appearance and aiding the jury in understanding such evidence. Queen City Coach Co. v. Lee, 218 N.C. 320, 11 S.E.2d 341; Davis v. Seaboard Air Line Railroad Co., 136 N.C. 115, 48 S.E. 591. The photographers and other witnesses testified that the photographs were accurate likenesses of the plaintiff at the times they were taken. White v. Hines, 182 N.C. 275, 109 S.E. 31; Bane v. Atlantic Coast Line R. Co., 171 N.C. 328, 88 S.E. 477. The presiding judge gave the jury the customary instruction that the photographs were not admitted as original or substantive evidence, but were received solely for the purpose of enabling the witnesses to explain, and the jury to understand, the testimony. State v. Rogers, supra; Carolina Coach Co. v. Central Motor Lines, 229 N.C. 650, 50 S.E.2d 909; State v. Gardner, 228 N.C. 567, 46 S.E.2d 824; Pearson v. Luther, 212 N.C. 412, 193 S.E. 739; Kelly v. Raleigh Granite Co., 200 N.C. 326, 156 S.E. 517; Huneycutt v. Cherokee Brick Co., 196 N.C. 556, 146 S.E. 227; Elliott v. Tallassee Power Co., 190 N.C. 62, 128 S.E. 730; State v. Jones, 175 N.C. 709, 95 S.E. 576; Hoyle v. City of Hickory, 167 N.C. 619, 83 S.E. 738; Pickett v. Atlantic Coast Line R. Co., 153 N.C. 148, 69 S.E. 8.

The photograph of the hydrant was taken at the scene of the accident six months after that event occurred. The evidence disclosed that the plaintiff's witness Frank Crary removed the hydrant shortly after the accident and replaced it just before it was photographed. Notwithstanding this evidence, the trial judge did not err in admitting the photograph of the hydrant, which was verified by its maker, for the limited purpose sanctioned by the decisions cited above. This is true because Crary testified that when he replaced the hydrant, it was in the identical position occupied by it immediately after the accident. Posed photographs of the reconstructed scene of an accident are admissible where such photographs are properly identified by a witness as being accurate representations of the conditions at the scene as he saw them at the time in issue. Jewel Tea Co. v. McCrary, 197 Ark. 294, 122 S.W. 2d 534; Reed v. Davidson Drug Co., 97 Colo. 462, 50 P.2d 532; State v. Ebelsheiser, 242 Iowa 49, 43 N.W.2d 706, 19 A.L.R.2d 865; Lewis v. Chicago Great Western R. Co., 155 Minn. 381, 193 N.W. 695; Favre v. Louisville & N. R. Co., 180 Miss. 843, 178 So. 327; Fulton v. Chouteau County Farmers' Co., 98 Mont. 48, 37 P.2d 1025; Bailey v. Greeley General Warehouse Co., Ohio App., 83 N.E.2d 244; Dofner v. Branard, Tex.Civ.App., 236 S.W.2d 544; Thayer v. Glynn, 93 Vt. 257, 106 A. 834; Farmer v. School Dist. No. 214, King County, 171 Wash. 278, 17 P.2d 899, 115 A.L.R. 1171.

This brings us to the assignment of error based on the admission in...