Jordan v. Glickman

• Decision Date: 09 April 1941
• Docket Number: 239.
• Parties: JORDAN v. GLICKMAN.
• Court: North Carolina Supreme Court

14 S.E.2d 40

219 N.C. 388

JORDAN v. GLICKMAN.

No. 239.

Supreme Court of North Carolina

April 9, 1941

Gavin Jackson & Gavin, of Sanford, for appellant.

No counsel for appellee.

SCHENCK Justice.

This is an action for the wrongful death of the plaintiff's intestate alleged to have been proximately caused by the negligence of the defendant.

There was evidence tending to prove that on December 1, 1939, the intestate, a youth of fourteen years of age, was riding in a wagon driven southward by his father on U. S. Highway No. 1 about six miles north of Sanford; that at the same time the defendant's automobile, in which he was riding, was being driven in the same direction on the same highway; that the driver of the wagon drove to his left across said highway to enter a private road to his home, and after he had traversed the greater portion of said highway and all of the wagon except two or three feet of the rear thereof, was off of the hard surface, the defendant's automobile driven at an unlawful and negligent rate of speed and on its left side of the highway struck the wagon and hurled the plaintiff's intestate to the ground; that the said intestate was injured by his impact upon the hard surface; and that said intestate died on March 29, 1940.

When the plaintiff had introduced her evidence and rested her case the defendant moved to dismiss the action and for a judgment as in case of nonsuit. C. S. § 567. The motion was allowed and from judgment accordant therewith, the plaintiff appealed, assigning error.

According to the plaintiff's brief the only question presented is: "Did the Court err in excluding the evidence of the witness Mrs. C. J. Jordan, and (in) sustaining defendant's motion of nonsuit at the close of plaintiff's evidence? (for want of evidence of proximate cause)."

Mrs. C. J. Jordan, mother of the intestate, C. T. Jordan, a lad of fourteen years, testified substantially that she saw her son later in the afternoon of the same day on which the collision between the wagon in which he was riding and the automobile of the defendant took place, that he was bruised and cut about the face, his arms and hips and chest were swelling, he had severe pains in his chest, and that she dressed his wounds and rubbed his chest with liniment and poulticed it, he grew worse; he was unable to sleep and sat up most of the nights, his chest seemed to give him the most trouble, it was swelling when the witness got home the evening he was hurt and continued to swell and at the time of his death it stuck way out; he was not in that condition before the injury, he had a normal chest, was in good health and was unusually active; he was taken to the hospital for about a month and when he returned home he was unable to be up or out and could not sleep lying down, he could not get his breath, "I give him the medicine the doctors prescribed and rubbed his chest and put poultices on it. Nothing helped him I did. He died March 29, 1940."

The witness, Mrs. C. J. Jordan, was then asked if she had an opinion satisfactory to herself as to what caused the death of her son, and if so what it was. Objections to these questions were sustained, and such ruling is assigned as error by the appellant. It appears from the record that if the witness had been permitted to answer she would have stated that she had such an opinion, and it was that the death of her son "was caused from the injury received when the automobile collided with the wagon. It hurt his chest and affected his heart in such way that I could tell it was the same condition that was produced by the injury that continued to grow worse until he died from it. He was able to work and to eat, play and sleep before his injuries. He was not able to do either after that and ate very little and got to the place he could not eat anything hardly."

It is a fundamental principle of the law of evidence as administered by our courts, both in civil and criminal cases that the testimony of witnesses upon matters within the scope of common knowledge and experience of mankind, given upon the trial of a case, must be confined to statements of concrete facts within their own observation, knowledge and recollection. While there are exceptions to this rule which admit in evidence the conclusions and opinions of witnesses when the facts involved in the issue call for special skill and study, or when such facts are incapable of being clearly and adequately described, ...