Lambert v. Caronna

• Decision Date: 20 June 1934
• Docket Number: 508.
• Parties: LAMBERT v. CARONNA.
• Court: North Carolina Supreme Court

175 S.E. 303

206 N.C. 616

LAMBERT v. CARONNA.

No. 508.

Supreme Court of North Carolina

June 20, 1934

Appeal from Superior Court, Cumberland County; Sinclair, Judge.

Action by William S. Lambert against Charles Caronna. Judgment for plaintiff, and defendant appeals.

No error.

Testimony of army sergeant suing for personal injuries, explanatory of unobjected evidence that he had to undergo physical examination before he could re-enlist, held properly admitted, where evidence objected to was not materially different from that unobjected to.

This is an action brought by plaintiff against defendant for actionable negligence alleging damage. The defendant denied negligence and set up a counterclaim for actionable negligence against plaintiff alleging damage.

The issues submitted to the jury and their answers thereto were as follows:

"(1) Was the plaintiff injured through the negligence of defendant, as alleged in the complaint? A. Yes.

(2) Did plaintiff by his own negligence contribute to his injury, as alleged in the answer? A. No.

(3) What amount, if any, is plaintiff entitled to recover of the defendant? A. $5,000.00.

(4) Was defendant injured through the negligence of the plaintiff, as alleged in the answer? A. No.

(5) Did defendant, by his own negligence, contribute to his own injury, as alleged in the reply? A. Yes.

(6) What amount, if any, is defendant entitled to recover of the plaintiff? A. -----."

The defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.

Downing & Downing, of Fayetteville, and W. E. Kindley, Jr., of Baltimore, Md., for appellant.

Dye & Clark, of Fayetteville, for appellee.

CLARKSON Justice.

The evidence on the part of plaintiff was to the effect that he was a sergeant in the United States Army and had been in the Army for over a quarter of a century. At the time of the injury complained of, he was 59 years of age. On March 31 1933, he was on his way from Fayetteville to Fort Bragg between 10 and 11 o'clock at night, driving, at a moderate rate of speed, a Chrysler car, 1930 model. There was quite a bit of traffic, as it was pay day. He had to tip his lights frequently to keep from blinding people. Close to the noncommissioned club, he had just met a car and was going down a straight incline of the road, had to tip his lights down, and on that account was very careful. He was on the right-hand side of the concrete highway (18 feet wide), the rear end of a car loomed up right in front of him, it appeared to be stopped, he was close to it, taking his foot off the accelerator, he tried to throw the car over, but he did not have time until he was right in front of it and his car struck the rear end of the car and knocked it a considerable distance. His left knee was injured and his head went forward and knocked the windshield out and gave him a severe lick on the head and cut his nose. He was knocked into a kind of daze. It was very dark; he saw no lights on the parked car; just the back of the car loomed in front of his headlights. The car that he struck appeared to him "right square on the hard surface." He was not driving over 30 or 35 miles an hour, "was driving slowly and carefully," was not in a hurry, and had driven a car about 12 years. His car was seriously damaged, and his estimate as to the amount of damage was $250. He remained in the hospital from March 31st to May 4th.

As to his injury, plaintiff testified, in part: "I can walk fairly good but can't take up a double time, as we call it in the Army. If I have to hurry and take up double time, I can't do that. I have done no mounted duty and was excused from mounted duty. * * * We were to go out on range and I was detailed to go out and I mounted a gentle horse but it was rather difficult to pull myself up with that leg but ordinarily I can walk fairly well. It takes spells of popping. It pops every time I bend my knee. * * * My duties require me to ride a horse in any mounted organization. Have been in the present mounted organization that I am now in, since March, 1922. I have to re-enlist the 12th of next April before I can be retired. To reenlist, I have to undergo a physical examination."

The testimony of plaintiff as to the fact that he had to re-enlist the 12th of April before he could be retired, and, to re-enlist, he had to undergo a physical examination, was unobjected to by defendant. The subsequent testimony along the same line, explanatory to the above, was objected to by defendant, and assignments of error duly made. We do not think that they can be sustained. We do not think that the evidence objected to is materially different from that unobjected to. In Shelton v. R. R. 193 N.C. 670, 674, 139 S.E. 232, 235, it is said: "It is thoroughly established in this state that, if incompetent evidence is admitted over objection, but the same evidence has theretofore or thereafter been given in other parts of the examination without objection, the benefit of the exception is ordinarily lost." Nance v. Fertilizer Co., 200 N.C. 702, 708, 158 S.E. 486; Bateman v. Brooks, 204 N.C. 176, 185, 167 S.E. 627.

Corporal Henry E. Welch, a witness for plaintiff, testified, in part: ""The skid marks showed that the right wheels of the Pontiac (defendant's car) were sitting about an inch to the left of the right side of the hard surface road on the pavement."

Major Philander C. Riley, a witness for plaintiff, testified, in part: "The car was sitting at 10 feet from the side of the road and looked as if it had been violently struck in the rear. The skid marks that I saw were about 18 inches to two feet long. They were heavy skid marks." Questions by the court:

"Q. Were they tire marks upon the hard surface? A. I took them for such.

Q. Would the marks indicate that all four wheels or all four parts of the wheels were on the hard surface? A. I would judge all four wheels, sir. The first skid mark I would judge, was about 10 inches from the east edge of the hard surface, there were two parallel skid marks, about 5 feet apart. The western skid mark was about 5 feet, 10 inches from the Eastern side of the road. They were parallel marks about 5 ft. apart.

Q. Did those skid marks point toward or away from the car you saw that had been wrecked? A. I would say that they pointed towards the car, I judge.

Question by the Court: Q. What do you mean when you say you judge, do you mean that is your opinion? A. Yes, sir.

Statement by witness, will say: In my opinion it was in the direction in which the car was headed. I observed the shoulders of the road at that point. Without any doubt they were wide enough to drive a car on and get all four wheels completely off without any drop to the side. I would say that they were approximately 8 feet wide."

To the foregoing questions and answers, the defendant objected and assigned errors. We do not think that they can be sustained. In Kepley v. Kirk, 191 N.C. 690, 694, 132 S.E. 788, 790, we find: "The witness knew the road and was familiar with the conditions and could state the facts from personal observation. 'Where an inference is so usual, natural, or instinctive as to accord with general experience, its statement is received as substantially one of a fact-part of the common stock of knowledge.' 22 C.J. p. 530, citing numerous North Carolina cases."

In Willis v. New Bern, 191 N.C. 507, 514, 132 S.E. 286, 290, citing numerous authorities, it is said: "In addition, a nonexpert witness who has observed a place can, from his observation and acquaintance, testify as to such matters of fact depending on his ordinary powers of observation."

N.C. Code 1931 (Michie), § 2621 (66) (a) and (c), are as follows:

"(a) No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main

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