Karpf v. Adams

• Decision Date: 30 January 1953
• Docket Number: No. 240,240
• Citation: 74 S.E.2d 325,237 N.C. 106
• Parties: KARPF, v. ADAMS et al. RUNYON v. ADAMS et al.
• Court: North Carolina Supreme Court

Page 325

74 S.E.2d 325

237 N.C. 106

KARPF, v. ADAMS et al.

RUNYON v. ADAMS et al.

No. 240

Supreme Court of North Carolina.

Jan. 30, 1953.

Everette L. Doffermyre, Dunn and Wilson & Johnson, Lillington, for plaintiff appellees.

Neill McK. Salmon, Lillington and Robert H. Dye, Fayetteville, for defendant appellants.

James MacRae, Fayetteville, for defendant Nober, appellee.

BARNHILL, Justice.

There are twenty-nine exceptive assignments of error in the record. Those not brought forward and discussed in appellant's brief are deemed to be abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 562; State v. Avery, 236 N.C. 276, 72 S.E.2d 670; Brown v. Ward, 221 N.C. 344, 20 S.E.2d 324; Merchant v. Lassiter, 224 N.C. 343, 30 S.E.2d 217.

There are other assignments of error which are brought forward in the brief 'in support of which no reason or argument is stated or authority cited. ' To these Rule 28, supra, likewise applies.

The evidence offered by plaintiffs clearly required the submission of issues to the jury. The conflicts of testimony were for the twelve, and not the court, to consider in finding the facts. Council v. Dickerson's, Inc., 233 N.C. 472, 64 S.E.2d 551; Gold v. Kiker, 216 N.C. 511, 5 S.E.2d 548; Hughes v. Robert G. Lassiter & Co., 193 N.C. 651, 137 S.E. 806; Furlough v. Nash County Highway Commission, 195 N.C. 365, 142 S.E. 230.

During the selection of the jury, counsel for defendant Nober stated to the jury that this was one of a series of accidents of which there were eleven. Appellant immediately objected and moved for a new trial. Thereupon, the presiding judge carefully and fully cautioned the prospective jurors that they should not permit the remark of counsel to influence their decision in these cases if they should be chosen as jurors, which caution was in part as follows: 'The counsel are now determining whether or not you will be accepted as jurors to try a case in which there are two plaintiffs involved, and it has been stated to the Court at the outset that these two plaintiffs were injured in the same accident, and at the same time, and they are the injuries that the plaintiffs are suing for here, which is conceded arose out of the same transaction, the same time, and you will not consider any reference to any other accident at or about the same place, or time; you will disregard that and do not permit it in anyway to influence any verdict that you might render in these cases, if you should be chosen as a juror.'

Having so cautioned he prospective jurors, the court denied the motion and appellant excepted. In this ruling we can perceive no substantial error.

When prospective jurors are being questioned by counsel in the selection of a jury to try a pending action, it is essential that they be informed as to the nature and purpose of the cause to the end that counsel may ascertain whether they, or any one of them, have information, or have formed an opinion, which might disqualify them or prompt counsel to exercise their right of challenge. At times this necessitates the statement of facts which may, at least on the surface, appear to be prejudicial to the adversary parties. Even so, it is a necessary preliminary part of a trial by jury.

While the exercise of the right to seek this type of information rests largely in the discretion of the trial judge and should be carefully supervised by him, we perceive no abuse of discretion or invasion of rights of the appellant here.

Perhaps in giving the number of accidents which had occurred at the same place, counsel inadvertently exceeded the bounds of propriety. If so, the very careful caution of the judge was sufficient to remove any prejudicial effect thereof.

In this connection we may note that counsel for appellant, if they desired, had the right to examine the jurors concerning the impression the remark had made on their minds. Yet the record fails to disclose that they challenged or attempted to challenge any juror by reason thereof.

The evidence of similar accidents which happened on the morning of 19 March under approximately the same circumstances at the place where plaintiffs were injured was admitted over the objection and exception of appellant. The assignments of error directed to these exceptions afford no grounds for a new trial.

As a general rule, evidence of other accidents or occurrences is not competent and should not be admitted. 20 A.J. 278. But there are clearly defined and well-recognized exceptions to this rule.

Evidence of other similar accidents or injuries at or near the same place and at approximately the same time, suffered by persosn other than the plaintiff, are competent: '(1) To show the existence of a defective or dangerous condition * * * and the dangerous character of the place of injury * * *. ' 20 A.J. 282; Annotation 65 A.L.R. 380; 81 A.L.R. 686; Alcott v. Public Service Corp., 78 N.J.L. 482, 74 A. 499, 32 L.R.A.,N.S., 1084; City of Lebanon v. Graves, 179 Ky. 749, 199 S.W. 1064, L.R.A.1918B, 1016; Texas & P. R. Co. v. Watson, 190 U.S. 287, 23 S.Ct. 681, 47 L. Ed. 1057.

'Evidence of similar occurrences is admitted where it appears that all the essential physical conditions on the two occasions were identical; for under such circumstances the observed uniformity of nature raises an inference that like causes will produce like results, even thought there may be some dissimilarity of conditions in respect to a matter which cannot reasonably be expected to have affected the result. ' Perry v. Kelford Coca-Cola Bottling Co., 196 N.C. 690, 146 S.E. 805; Id., 196 N.C. 175, 145 S.E. 14; Broadway v. Grimes, 204 N.C. 623, 169 S.E. 194. The relevancy of this testimony is based upon the ground that the conditions and circumstances were substantially the same and the occurrences were separated only by a very brief interval of time. Conrad v. Shuford, 174 N.C. 719, 94 S.E. 424; Pickett v. Carolina & N. W. Ry., 200 N.C. 750, 158 S.E. 398; Etheridge v. Atlantic Coast Line R. Co., 206 N.C. 657, 175 S.E. 124.

The appellant assigns as error the following excerpt from the charge of the court:

'The defendant Construction Company calls attention to the fact that there has been some suggestion in respect to her loss of capacity to bear children, and her loss of capacity to have sexual relations; some reference has been made,--some contention has been made as to...