Lookabill v. Regan, 389

• Decision Date: 20 November 1957
• Docket Number: No. 389,389
• Court: North Carolina Supreme Court
• Parties: Mrs. John LOOKABILL, Administratrix of Ruth L. Workman, deceased, v. Henry G. REGAN.

Page 521

100 S.E.2d 521

247 N.C. 199

Mrs. John LOOKABILL, Administratrix of Ruth L. Workman, deceased, v. Henry G. REGAN.

No. 389

Supreme Court of North Carolina.

Nov. 20, 1957

Philip R. Craver, Charles W. Mauze, Lexington, for plaintiff appellant.

Deal, Hutchins & Minor, Winston-Salem, for defendant appellee.

WINBORNE, Chief Justice.

Appellant states in her brief filed on this appeal six questions as being involved here. These incorporate eight assignments of error, embracing twenty-five exceptions.

Question I: (Exceptions 1 and 4--assignments 1 and 3) 'Did the trial court err in permitting opinion evidence and deductive conclusions be lay witnesses?'

The matter to which Exception 1 relates arose in this manner: The case on appeal shows that in course of his direct examination defendant testified: 'I met a 1955 model Chevrolet and I saw it, I suppose, 250 or 300 feet from it --possibly 400 feet--and it was coming at a high rate of speed. I don't know what, but it was a high rate of speed, and I didn't think the driver saw me until he got * * *.' Objection and motion to strike. Motion denied. Plaintiff's exception No. 1.

This is the question to which exception 4 relates: 'Q. As he pointed, which side of the road did he indicate his car was on by pointing?' Objection overruled. Exception No. 4.

The answer is that 'He was in the east side of the road. He stated he saw the car coming at a high rate of speed, and he immediately cut to the right, and the car passed * * *.' The answer removes any objection there may have been in th e question. There is no deductive conclusion as to which side of the road he was on. The answer is explicit.

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. State v. Roberson, 240 N.C. 745, 83 S.E.2d 798, ad cases cited. See, also, State v. Roberts, 188 N.C. 460, 124 S.E. 833; Hill & Brooks v. Louisville & N. R. Co., 186 N.C. 475, 119 S.E. 884; State v. Journegan, 185 N.C. 700, 117 S.E. 27; State v. Jessup, 183 N.C. 771, 111 S.E. 523; Shepherd v. Sellers, 182 N.C. 701, 109 S.E. 847; Taylor v. Security Life & Annuity Co., 145 N.C. 383, 59 S.E. 139, 15 L.R.A., N.S., 583; Horne v. Consolidated R. Light & Power Co., 144 N.C. 375, 57 S.E. 19.

Indeed, applicable principle is stated in Gililand v. Board of Education, 141 N.C. 482, 54 S.E. 413, 414, opinion by Hoke, J., in this manner: 'Where witness, undertakes to testify to objective facts and qualifies his testimony by using the terms, 'I think,' or 'I have an impression,' etc., if the witness had had no physical observation, or has made no note of the facts, but is merely stating to the court and jury his mental inference or deduction; this, as a rule, is incompetent. But if the witness has had opportunity to note relevant facts himself, and did observe and note them, and simply qualifies his testimony in this way because his impression or memory is more or less indistinct, this, while in the form of opinion, is really the statement of a fact and will be so received. Greenleaf Ev. (16 Ed.) § 430(i).'

And Hoke, J., continued: 'And so it is here. The witness was a neighbor of Jeffrey Graham for four years or more and speaks from his own observation. He is giving to the jury impressions of things he saw and noted, and not an inference or deduction from things he had not seen, and the evidence was properly received.'

Indeed, it is noted that at other times defendant testified without objection to the high rate of speed intestate of plaintiff was traveling. This had the effect of waiving any objection to the evidence as first given.

Question H: This relates to exception 2, assignment 2, to the trial court refusing the request of plaintiff's counsel to read the record of the cross-examination of defendant taken at a former trial,--the vice charged is that the reader may emphasize certain portions as he reads, etc. The court permitted defendant's counsel to read the whole of the testimony. And the case on appeal fails to show that plaintiff suffered any damage, or that defendant obtained any advantage by so doing. The objection is without merit.

Question III: This question is based upon exception 6, assignment 5, to alleged prejudicial failure of the trial court to charge the jury on the allegations and evidence offered by the plaintiff to show violation of the reckless driving statute by the defendant. If it be conceded that the trial court did fail to so charge the jury, the verdict of the jury finding on the first issue that plaintiff's intestate was injured and killed by the negligence of the defendant as alleged in the complaint, that is, that defendant's negligence was a proximate cause of the death of plaintiff's intestate, renders harmless such failure to charge.

Question IV: This question is based upon assignment of error 4, exception 5, to the use of a...