Reeves v. Hill, 464
| Decision Date | 12 January 1968 |
| Docket Number | No. 464,464 |
| Citation | 158 S.E.2d 529,272 N.C. 352 |
| Parties | Paul Larston REEVES, Plaintiff, v. Edwin B. HILL, Administrator of the Estate of Thomas Franklin Bryan, Sr., andJacqueline Hill, Administratrix of the Estate of Dorothy McKinley Bryan, Defendants. James Larry BYRD, by his Next Friend, Fred R. Byrd, Plaintiff, v. Edwin B. HILL, Administrator of the Estate of Thomas Franklin Bryan, Sr., andJacqueline Hill, Administratrix of the Estate of Dorothy McKinley Bryan, Defendants, and Paul Larston Reeves, Additional Defendant. Virgie Bowman SPACH, Administratrix of the Estate of Samuel Eli Spach, Sr., Plaintiff, v. Paul Larston REEVES, and Edwin B. Hill, Administrator of the Estate of ThomasFranklin Bryan , Sr., and Jacqueline Hill, Administratrix of the Estate ofDorothy McKinley Bryan, Defendants. Samuel Eli SPACH, Jr., Plaintiff, v. Paul Larston REEVES, Edwin B. Hill, Administrator of the Estate of ThomasFranklin Bryan, Sr., and Jacqueline Hill, Administratrix of the Estate ofDorothy McKinley Bryan, Defendants. Scottie Jo BOWMAN, a minor, by her Next Friend, Ross Strange, Plaintiff, v. Paul Larston REEVES, and Edwin B. Hill, Administrator of the Estate of ThomasFranklin Bryan, Sr., and Jacqueline Hill, Administratrix of the Estate ofDorothy McKinley Bryan, Defendants. Virgie Bowman SPACH, Plaintiff, v. Paul Larston REEVES, and Edwin B. Hill, Administrator of the Estate of ThomasFranklin Bryan, Sr., and Jacqueline Hill, Administratrix of the Estate ofDorothy McKinley Bryan, Defendants. |
| Court | North Carolina Supreme Court |
Haworth, Riggs, Kuhn & Haworth, and Walter W. Baker, Jr., High Point, and Forman, Zuckerman & Scheer, Greensboro, for plaintiff, appellant.
T. Conway Pruett and Womble, Carlyle, Sandridge & Rice and H. Grady Barnhill, Jr., Winston-Salem, for defendants Edwin B. Hill, Administrator of the Estate of Thomas Franklin Bryan, Sr., and Jacqueline Hill, Administratrix of the Estate of Dorothy McKinley Bryan.
Appellant contends the trial judge erred in denying his motion for judgment as of nonsuit.
Defendants Edwin B. Hill, Administrator of Thomas Franklin Bryan, Sr., and Jacqueline Hill, Administratrix of the estate of Dorothy McKinley Bryan, plaintiff Virgie Bowman Spach, administratrix of Samuel Eli Spach, Sr., and plaintiffs Virgie Bowman Spach, Samuel Eli Spach, Jr., and Scottie Jo Bowman (hereinafter called appellees) by their respective complaints and counterclaims allege, Inter alia, that appellant Reeves violated the provisions of G.S. § 20--148 and G.S. § 20--146, in that he failed to pass to the right and give at least one-half of the main-traveled portion of the highway to the automobile in which appellees were riding.
The evidence of Patrolman Holman pertinent to these allegations is as follows:
'I first observed most of the debris on this side of the road, or would be the eastbound lane. There was oil, there was some dirt, there were some broken pieces of glass, red in color, and some was just white, regular glass. * * *
'* * * we found, on the right-hand shoulder--
Q. Right-hand shoulder as a person would be headed towards High Point?
A. Yes, sir.
Q. All right, go ahead.
A. Two indentations into the dirt on the shoulder.
Q. Were they old or fresh?
A. In my opinion they were fresh marks.
Q. All right, go ahead.
A. They led in a westerly direction towards the rural unpaved road, and the inside indentation, or pressure mark that I found, extended from the--a pressure mark--a black mark or pressure mark, out into the road.
Q. On the hard surface you mean?
A. Yes, sir.
Q. How far onto the hard surface?
A. I didn't step it off. I didn't make that measurement.
Q. I see. Go ahead and tell what else you found.
A. Then, I believe I observed it going back Into the debris--the pressure mark, or a cut out place into the highway, near the center of the road, which would be on the south side, Or in the eastbound lane--a cut portion of the road, cut away.' (Exphasis ours)
A violation of G.S. § 20--148 or G.S. § 20--146 is negligence Per se, and when proximate cause of injury or damage is shown, such violation constitutes actionable negligence. Anderson v. Webb, 267 N.C. 745, 148 S.E.2d 846. See also McGinnis v. Robinson, 258 N.C. 264, 128 S.E.2d 608; Bondurant v. Mastin, 252 N.C. 190, 114 S.E.2d 292; Hobbs v. Queen City Coach Co., 225 N.C. 323, 34 S.E.2d 211; Grimes v. Carolina Coach Co., 203 N.C. 605, 166 S.E. 599.
Where plaintiff sues for injuries or damages caused by an automobile collision and offers evidence showing that defendant was driving left of the center of the highway when the collision occurred, such evidence makes out a prima facie case of actionable negligence. Anderson v. Webb, supra.
When considered in the light most favorable to appellees, the testimony as to marks on the north side of the highway going back 'into the debris' located in the eastbound lane, when buttressed by the testimony of the dug out holes on the south side of the highway as related to the Chrysler station wagon, permits a reasonable inference that appellant Reeves failed to pass to the right and give at least one-half of the main-traveled portion of the highway to the Bryan automobile.
Appellant also argues that the two Bryans' wrongful death counterclaims should have been nonsuited because the plaintiff administrators failed to show pecuniary loss. In this connection the administrators of the deceased Bryans elicited from the witness Mrs. Spach evidence as follows:
Actions for wrongful death are creatures of the statute and the statute does not provide for assessment of punitive damages nor the allowing of nominal damages in the absence of pecuniary loss. G.S. §§ 28--173, 28--174; Armentrout v. Hughes, 247 N.C. 631, 101 S.E.2d 793, 69 A.L.R.2d 620; Hines v. Frink and Frink v. Hines, 257 N.C. 723, 127 S.E.2d 509.
This Court has recognized an exception to this rule, as a rule of necessity, by allowing recovery for wrongful death of an infant without direct evidence of pecuniary damage other than sex, age and health. Russell v. Windsor Steamboat Co., 126 N.C. 961, 36 S.E. 191.
Nor is it essential that direct evidence of the earnings of a deceased adult be offered in order for there to be recovery of damages. Evidence of his health, age, industry, means and business are competent to show pecuniary loss. Hicks v. Love and Bruton v. Love, 201 N.C. 733, 161 S.E. 394; Owens v. Kelly, 240 N.C. 770, 84 S.E.2d 163.
Appellant relies heavily on Hines v. Frink and Frink v. Hines, supra. This case is distinguishable from instant case in that in Hines v. Frink and Frink v. Hines the record was devoid of any evidence as to age, health, habits or earning capacity. Here, there was evidence that the Bryans were in good health; that Mrs. Bryan worked for a grocery store and Mr. Bryan was part-owner of a garage in which he actively worked as a mechanic. This presents sufficient evidence of pecuniary loss to permit the jury to return a verdict for damages in favor of the Bryan administrators.
The assignment of error relating to the trial court's rulings on the evidence of marks on the north side of the highway is without merit. Appellant did not object to, except to, or move that the evidence elicited as to marks on the north side of the highway be stricken. Rather, he argues in his brief that, because of the confusing manner in which witnesses testified and because of the difficulty experienced by the court reporter in keeping track of the progress of the trial, he was justified in waiting until all the evidence was in to move that such evidence not be considered.
It is generally recognized in this jurisdiction that evidence admitted without objection is properly considered by the court in determining the sufficiency of the evidence and by the jury in determining the issue, even though the evidence is incompetent and should have been excluded had objection been made. This rule does not apply if the evidence admitted without objection is precluded by statute in furtherance of public policy. 1 N.C. Index 2d, Appeal and Error, § 30, p. 162; Harriet Cotton Mills v. Local Union No. 578, 251 N.C. 218, 111 S.E.2d 457, 79 A.L.R.2d 646. The objection to the admission of this evidence must be made at the time of its introduction, Steelman v. Benfield, 228 N.C. 651, 46 S.E.2d 829; Parsons v. Benfield, 228 N.C. 651, 46 S.E.2d 829, and where testimony sufficient to establish a fact at issue has been received in evidence without objection, a nonsuit cannot be sustained even if the only evidence tending to establish the disputed fact is incompetent. Skipper v. Yow, 249 N.C. 49, 105 S.E.2d 205.
All appellees allege high speed and violations of G.S. § 20--140, G.S. § 20--141(a) and G.S. § 20--141(c).
We recognize that since appellees rely on the physical facts at the scene of the collision to carry their cases to the jury, they must offer evidence by established facts...
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Taylor v. Johnston
...was Admitted without objection, and should therefore have been considered for whatever probative value it contained. Reeves v. Hill, 272 N.C. 352, 158 S.E.2d 529; Freeman v. City of Charlotte, 273 N.C. 113, 159 S.E.2d Although not strongly argued by the parties to this proceeding, we deem i......
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...Although it is not essential that direct, specific evidence be offered with reference to decedent's earning capacity, Reeves v. Hill, 272 N.C. 352, 158 S.E.2d 529; Hicks v. Love, 201 N.C. 773, 161 S.E. 394, it is required that plaintiff offer some evidence tending to show that intestate was......
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