Luttrell v. Hardin

• Decision Date: 23 February 1927
• Docket Number: (No. 526.)
• Citation: 136 S.E. 726
• Court: North Carolina Supreme Court
• Parties: LUTTRELL. v. HARDIN.

136 S.E. 726

(103 N.C. 266)

LUTTRELL.

v.HARDIN.

(No. 526.)

Supreme Court of North Carolina.

Feb. 23, 1927.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Accident—Accidental.]

Appeal from Superior Court, Avery County; Lane, Judge.

Action by Ed. M. Luttrell against R. H. Hardin. Judgment for defendant, and plaintiff appeals. No error.

Material allegations of plaintiff: On the night of November 27, 1924, he became a passenger in an automobile owned and driven by defendant, with the intention to drive from his home at Shull's Mills, N. C, to Banner's Elk, N. C, and from there to Linville, N. C, in order that defendant, who is a licensed and practicing physician, might render professional services to plaintiff's brother. Between 9 and 10 o'clock in the eve ning of said November 27, 1924, at a point in the county of Avery near Banner's Elk, the automobile in which plaintiff was riding with defendant and another was overturned at a curve in the highway, and plaintiff was thrown therefrom, and suffered serious bodily injuries. That plaintiff's injuries were caused wholly and proximately by the negligence of defendant, in that: (a) Defendant negligently and recklessly operated his car in violation of the laws of North Carolina; (b) defendant in approaching said curve was driving at a speed greater than was reasonable and proper and in excess of the speed of ten miles per hour; (c) defendant failed to keep a proper lookout for his safety and the safety of his guests; (d) defendant failed to keep his motor car under control at all times, as required by law. Plaintiff therefore prays judgment, etc.

Defendant in his answer denied the material allegations of negligence, and says: That at the time of the accident the defendant was driving a comparatively new Buick car, with the plaintiff and one Mrs. Bradley in the car with him, and that he was running at a very moderate speed, when, for some cause unknown to the defendant, the lights in the car suddenly went out; that it was dark and foggy, and, when the lights went out, the defendant was unable to see the road, and before the car could be stopped it slipped off the lower bank of the road; that, after the lights went out, the car did not move more than six or eight feet until it went over the embankment; that the defendant had been driving the car, and keeping it in good condition, and the lights had always been good, and had never given any trouble before prior to this night, and the defendant believes that the switch controlling the lights was accidentally touched by either the plaintiff or Mrs. Bradley, and suddenly turned off, and said injury was caused by no fault of defendant, but was an unavoidable accident; that the plaintiff himself informed this defendant that his injury was in no way due to any negligent act on the part of the defendant, and has repeatedly told a number of people other than the defendant that it was a pure accident, and unavoidable, and that he attached no blame whatever to the defendant; that the plaintiff was voluntarily riding with the defendant merely as an accommodation to him, and has not paid, and was not expected to pay, anything for the services; that the defendant was not a carrier of passengers for hire, and had no right to transport passengers for hire.

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

"(1) Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: No.

"(2) What damages, if any, is the plaintiff entitled to recover? No answer."

The other material facts necessary for the decision of the case will be set forth in the opinion.

Plaintiff assigned numerous errors, and appealed to the Supreme Court.

Squires & Whisnant, of Lenoir, and Johnson J. Hayes, of Greensboro, for appellant.

Frank A. Linney, of Charlotte, W. C. New-land, of Lenoir, and S. J. Ervin and S. J. Ervin, Jr., both of Morganton, for appellee.

CLARKSON, J. The first group of assignments of error on the part of plaintiff is to the exclusion of certain evidence by the court below, which the plaintiff contends, if not a direct admission, was by inference an admission of liability.

From careful analysis of these assignments of error, we think the court below was correct in holding the evidence incompetent. The evidence appears to be an indirect method to get before the jury that defendant had indemnity insurance. As an example, from the group (fourth assignment):

"Q. I will ask you if you told Mr. Geo. Rob-bins that, if the suit had been brought for only §25, 000, you would have had no complaint? A. I told him that this damage suit was brought against me for more insurance than I had; that, if they should get judgment against me for more insurance than I am covered by, I would not have the money to pay it. I told him I didn't object to Ed. getting some money if it didn't bother me, but, as to the amount I don't know. He was talking to me about it, and I was sorry of it, but I couldn't help it, but I don't mean to admit that I was liable by saying that, for I was not."

It is well settled in this jurisdiction "that the assured * * * must actually sustain a loss before an action will lie upon the indemnifying policy, as this is expressly required by the terms." Killian v. Hanna, 193 N. C. at page 20, 136 S. E. 247. It has been repeatedly held that the fact that a defendant in an actionable negligence action carried indemnity insurance could not be shown on the trial. Such evidence is incompetent, Lytton v. Mfg. Co., 157 N. C. 331, 72 S. E. 1055, Ann. Cas. 1913C, 358; Feather-stone v. Cotton Mills, 159 N. C. 429, 74 S. E. 918; Hensley v. Furniture Co., 164 N. C. 148, SO S. E. 154; Starr v. Oil Co., 165 N. C. 587, 81 S. E. 776; Holt v. Mfg. Co., 177 N. C. 170, 98 S. E. 369; Stanley v. Lumber Co., 184 N. C. 302, 114 S. E. 385; Bryant v. Furniture Co., 186 N. O. 441, 119 S. E. 823; Allen v. Garibaldi, 1S7 N. C. 798, 123 S. E. 66; Fulcher v. Lumber Co., 191 N. C. 408, 132 S. E. 9.

The following question was asked defendant: "What rate of speed were you traveling?" to which he answered: "I couldn't say. I was driving moderately. I was not going over 15 miles an hour. I don't know-that I was going that much. I just don't know exactly, but I was not going over 15 miles. I was going at what I thought was a safe speed relative to the road."

Conceding, but not deciding, that defendant's answer, "What I thought was a safe speed relative to the road, " was incompetent, the question propounded witness was competent, and defendant should have asked that the incompetent part of the answer be stricken out. This he did not do.

In Gilland v. Stone Co., 189 N. C. at page 786, 128 S. E. 158, it is said:

"If defendant deemed the statement of the witness, which was not in response to the question directed to him by his counsel, but voluntarily made, incompetent and prejudicial, it should have directed its objection to the court, accompanied by a motion to strike the objectionable statement from the record, and by a request for an instruction, if desired, to the jury that the statement had been stricken from the record and should not be considered as evidence. To a ruling upon this motion an exception would lie as basis for an assignment of error upon appeal to this Court. Huffman v. Lumber Co., 169 N. C. 259 ; Wooten v. Order of Odd Fellows, 176 N. C. 52 ; State v. Green, 187 N. C. 460 ." Hodges v. Wilson, 165 N. C. 323, 81 S. E. 340; Young v. Stewart, 191 N. C. p. 302, 131 S. E. 735.

We come now to the main controversy below; plaintiff claiming actionable negligence, defendant claiming sudden emergency or accident. E. M. Luttrell, Dr. R. H. Hardin, and Mrs. Bettie Bradley, the latter who was working at Brace Hospital at Banner's Elk, were in a Buick roadster six cylinder ear, driven by Dr. Hardin, going from Shull's Mills, via Valle Crucis, to Banner's ElkPlaintiff was going to see a sick brother, to whom Dr. Hardin was to give medical attention next morning. The car went off the road about 9 o'clock p. m. November 27, 1924. Plaintiff testified, in part:

"Before we arrived on this turn where the wreck happened, I noticed Doctor was running too close to the left-hand side of the road, and I told him he had better haul his car in, and he made no reply, and, when we got up two or two and a half car lengths of where we went over the bank, I said, 'My God, Doctor, hold your car, we will go off the road, ' and he made an attempt to hold the car in the road, and he made an attempt to back his car. There was a sharp elbow curve in the road at that point. It was between 20 and 30 feet from the break of the ditch bank to the break of the road. We were traveling at about 15 miles an hour. The car went over the bank, and I got smashed up. * * * The accident took place between Ed. Shoemaker's home and Banner's Elk. There was a winding curve and a very high bank, and looked like a straight of road from that curve to the next place. We had not entered the curve when I again called Dr. Hardin's attention that his car was too close to the edge of the road, about 200 feet or more, and within two and a half car lengths, when I again called his attention to haul his car in. He was acquainted with the road, and went over it it alltimes of the night. He was driving a Buick roadster. The curve was from 20 to 30 feet wide. There was a bank on the right, and the road was so constructed it was on a level to where the car swerved, I would say 16 feet. The car left the road about the center of the curve. Dr. Hardin had time enough to stop his car the first time, and sufficient time to stop it the second. At the rate of speed he was running he would not have run over 4 feet until he could have stopped his car dead still. I have never driven a Buick, but I know the distance it would take to stop a Buick of that type, and at 15 miles an hour he could have brought his car to a dead stop in 4 feet."

Luttrell...