Spivey v. Newman

• Decision Date: 09 June 1950
• Docket Number: No. 674,674
• Citation: 59 S.E.2d 844,232 N.C. 281
• Parties: SPIVEY, v. NEWMAN.
• Court: North Carolina Supreme Court

Page 844

59 S.E.2d 844

232 N.C. 281

SPIVEY, v. NEWMAN.

No. 674

Supreme Court of North Carolina.

June 9, 1950

Thomas Turner and J.J. Shields, Greensboro, for plaintiff, appellee.

P. W. Glidewell, Sr., Reidsville, and Welch Jordan, Greensboro, for defendant, appellant.

ERVIN, Justice.

We give first consideration to the sixth and fifteenth exceptions, which are based on the refusal of the trial court to dismiss the action upon a compulsory nonsuit under the statute. G.S. § 1-183.

The driver of a motor vehicle is not an insurer of the safety of a person riding therein as an invited guest. But he is required by law to exercise reasonable care to protect such person from harm. Accordingly, he is liable for an injury to a guest proximately resulting from his negligence in the operation of the automobile. Wright v. Wright, 229 N.C. 503, 50 S.E.2d 540; Henderson v. Powell, 221 N.C. 239, 19 S.E.2d 876; Montgomery v. Blades, 218 N.C. 680, 12 S.E.2d 217; White v. McCabe, 208 N.C. 301, 180 S.E. 704; Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761. When the evidence presented by the plaintiff at the trial and this rule of law are laid side by side, it is manifest that such evidence was sufficient to establish actionable negligence on the part of the defendant. It tended to show that the plaintiff suffered personal injury as the proximate consequence of the negligent failure of the defendant to ascertain whether he was in a position of saftey before she put her car in motion. Hernandez v. Murphy, 46 Cal. App.2d 201, 115 P.2d 565; Moore v. Davis, La.App., 199 So. 205; Corrigan v. Clark, 93 N.H. 137, 36 A.2d 631.

Moreover, it can not be said that the plaintiff was contributorily negligent as a matter of law in that he attempted to board the automobile of the defendant or to seat himself therein in a dangerous fashion. Under the testimony opposing inferences were permissible on this particular aspect of the case, and it was, therefore, a question of fact for the jury whether the plaintiff was guilty of contributory negligence. Groome v. Davis, 215 N.C. 510, 2 S.E.2d 771; King v. Pope, 202 N.C. 554, 163 S.E. 447.

Furthermore, the record does not justify the conclusion that the proof presented by the plaintiff established a cause of action different from that alleged by him. Even if it be taken for granted that the evidence offered did not correspond in all respects with the allegations of the complaint, the resultant variance must be adjudged immaterial; for nothing in the record suggests that it actually misled the defendant to her prejudice in maintaining her defense upon the merits. G.S. § 1-168; Simmons v. John L. Roper Lumber Co., 174 N.C. 220, 93 S.E. 736; Mode v. Penland, 93 N.C. 292.

These things being true, the trial court rightly refused to nonsuit the action.

Certain assignments of error are addressed to the admission of testimony given by the plaintiff's physician, Dr. Willard Cardwell, a conceded medical expert. It is well settled in the law of evidence that a physician or surgeon may express his opinion as to the cause of the physical condition of a person if his opinion is based either upon facts within his personal knowledge, or upon an assumed state of facts supported by evidence and recited in a hypothetical question. Patrick v. Treadwell, 222 N.C. 1, 21 S.E.2d 818; Yates v. Thomasville Chair Co., 211 N.C. 200, 189 S.E. 500; Godfrey v. Western Carolina Power Co., 190 N.C. 24, 128 S.E. 485; Martin v. P. H. Hanes Knitting Co., 189 N.C. 644, 127 S.E. 688; Brewer v. Ring, 177 N.C. 476, 99 S.E. 358; Taylor v. Tallahassee Power Co., 174 N.C. 583, 94 S.E. 432; Ridge v. Norfolk Southern R. Co., 167 N.C. 510, 83 S.E. 762, L.R.A.1917E, 215; Lynch v. Rosemary Manufacturing Co., 167 N.C. 98, 83 S.E. 6; Holder v. Giant Lumber Co., 161 N.C. 177, 76 S.E. 485; Pigford v. Norfolk Southern R. Co., 160 N.C. 93, 75 S.E. 860, 44 L.R.A., N.S., 865; Beard v. Southern Railroad Co., 143 N.C. 136, 55 S.E. 505; Summerlin v. Carolina & N. W. Railroad Co., 133 N.C. 550, 45 S.E. 898. As we interpret the record, the third, fourth and fifth exceptions related to the hypothetical question asked Dr. Cardwell by counsel for plaintiff. This hypothetical question was framed properly, and merely elicited from the physician his opinion as to the cause of the suffering alleged to have been endured by the plaintiff. Hence, these exceptions are without validity. The defendant maintains with some plausibility that the trial court erred in receiving the portion of Dr. Cardwell's testimony, which is the subject of the first and second exceptions. Be this as it may, these exceptions are not subject to review in this court for the same witness gave substantially the same testimony without objection in other portions of his examination. Union Indemnity Co. v. Perry, 200 N.C. 765, 158 S.E. 560; Smathers v. Jennings, 170 N.C. 601, 87 S.E. 534; 5 C.J.S., Appeal and Error, § 1735.

The seventh, eighth and eleventh exceptions challenge rulings excluding testimony of the defendant's medical witness, Dr. A. J. Tannenbaum, that he had examined a skiagraph which he assumed to be an X-ray photograph of the plaintiff's skull, and that such picture disclosed 'no objective evidence of bony disorder. ' Expert evidence as to what a duly authenticated X-ray picture shows is undoubtedly admissible where it tends to aid the jury to understand the nature and extent of injuries involved in the action on trial. Eaker v. International Shoe Co., 199 N.C. 379, 154 S.E. 667. The trial court rightly rejected Dr. Tannenbaum's interpretation of the skiagraph in question, however, for it did not appear by competent evidence that such X-ray photograph was actually a picture of the plaintiff's skull. These observations of a text writer seem pertinent here: 'An X-ray picture cannot be authenticated in the same manner as an ordinary photograph, that is, by testimony that it is a correct representation of the object it purports to picture, since it purports to show only shadows of objects not otherwise visible to the eye. To authenticate an X-ray picture two things are generally required: (1) It must be shown that the picture offered is actually a picture of the object or part of the body of which it is claimed to be a picture. (2) It must be shown by satisfactory evidence that the picture is accurate, in the sense that it conforms to the standard of accuracy of X-ray pictures generally.' 32 C.J.S., Evidence, § 712.

Dr. Tannenbaum testified fully on his direct examination that in his opinion the plaintiff was suffering from hysteria. Counsel for the defendant undertook to have him repeat this identical testimony on his re-direct examination, and the trial court sustained the objection of plaintiff to such repetition. The ninth, tenth, twelfth, thirteenth, and fourteenth exceptions, which question this ruling, are not maintainable. A trial court has discretionary power to exclude or limit the repetition of questions and answers, however...