Steelman v. Benfield
| Decision Date | 24 March 1948 |
| Docket Number | 238. |
| Citation | 46 S.E.2d 829,228 N.C. 651 |
| Parties | STEELMAN v. Benfield et al. PARSONS v. SAME. |
| Court | North Carolina Supreme Court |
Two civil actions to recover compensation for personal injuries and property damages resulting from a taxi-automobile collision. In the Parsons case the defendants pleaded a counterclaim. The two cases were tried together by consent.
On 25 July 1946, Steelman was operating an automobile on the Wildesboro-Lenoit highway, going in a westerly direction towards Lenoir. Parsons was his guest passenger. At the same time Benfield was operating a taxi belonging to defendant McLean on the same highway going easterly towards Wilkesboro. He was at the time an employee of McLean, engaged in the discharge of his duties as such. The two vehicles met and collided in a curve just west of the village of Boomer. Evidence as to the circumstances of the collision is in sharp conflict.
The testimony for plaintiffs tends to show that Steelman was operating his vehicle on his right side of the road and on the outside of the curve, at about 30 miles per hour; that Benfield approached from the opposite direction at a high rate of speed--60 or 65 miles per hour; his taxi was 'bouncing up and down" and was veering to its left across the center of the road. "When the taxi began to come into the curve he (Benfield) was coming too fast when he started to make the curve he couldn't make it, the car kept veering over toward us." Stelman cut his car to th right, partly off the hard surface, when the taxi collided with his right front wheel, "bounced up on top" of the automobile and "bounced back off the side of our car and was sitting about midways of the road." Parsons was thrown against the windshield and then out of the car on the bank of the road, suffering certain personal injuries. Steelman remained under the steering wheel and suffered a fractured pelvis and other serious injuries. His car was badly damaged.
On the other hand, the evidence for the defendants tends to show that just as the taxi, going about 40 miles per hour, reached or was entering the curve, Benfield saw Steelman's automobile approaching on the wrong side of the road and that he cut to his right, partly off the hard surface, to avoid the collision, but was hit by plaintiff's automobile and the taxi was knocked backward 10 or 15 feet. Benfield suffered certain personal injuries and "the whole front end" of his taxi was mashed in.
At the hearing in the court below appropriate issues in each action were submitted to the jury. In the Parsons case these included issues raised by defendants' pleaded counterclaim. The issues in each case were answered in favor of the plaintiff. From judgments on the verdicts defendants appealed.
W.H Strickland, of Lenoir, and Larry S. Moore, of North Wilkesboro, for appellants.
Hayes & Hayes and W.H. McElwee, all of North Wilkesboro, for appellees.
The defendants' assignments of error consist of a seriatim listing of the exceptions entered during the trial. Two and one-half pages of their brief are consumed in stating the "questions involved." The "questions" as stated are the exceptions in abbreviated form, of which the following is typical: "Was there error in the question and answer set forth in Assignment of Error No. 1 (R. p 21)?" They make no effort to state the questions of law raised by their exceptions which they desire to have discussed and decided.
"Just what will constitute a sufficiently specific assignment must depend very largely upon the special circumstances of the particular case; but always the very error relied upon should be definitely and clearly presented, and the court not compelled to go beyond the assignment itself to learn what the question is." Thompson v. Seaboard Air Line R. Co., 147 N.C. 412, 61 S.E. 286, 287; Porter v. American Cigar Box Lumber Co., 164 N.C. 396, 80 S.E. 443.
"* * * the points determinative of the appeal, shall be stated clearly and intelligibly by the assignment of errors * * *", McDowell v. J.S. Kent Co., 153 N.C. 555, 69 S.E. 626, 627; Jones v. Atlantic Coast Line R. Co., 153 N.C. 419, 69 S.E. 427; Cecil v. Snow Lumber Co., 197 N.C. 81, 147 S.E. 735; Rawls v. Lupton, 193 N.C. 428, 137 S.E. 175; Jenkins v. Castelloe, 208 N.C. 406, 181 S.E. 266; Harrell v. White, 208 N.C. 409, 181 S.E. 268; and "The first page of appellant's brief * * * shall be used * * * for a succinct statement of the question or questions involved on the appeal. Such statement should not ordinarily exceed fifteen lines, and should never exceed one page. * * *
"The statement of the questions involved or presented by the appeal, is designed to enable the Court, as well as counsel, to obtain an immediate view and grasp of the nature of the controversy; and a failure to comply with this rule may result in a dismissal of the appeal." Rule 27 1/2, 221 N.C. 562; Caldwell v. Southern R. Co., 218 N.C. 63, 10 S.E.2d 680; Kugler Lumber Co. v. Latham, 199 N.C. 820, 155 S.E. 128; Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126.
It would seem that the motion of plaintiffs to dismiss is not without substantial merit.
Clearly there was sufficient evidence to repel the motion for judgment as in case of nonsuit and to require the submission of appropriate issues to the jury. It was for them to decide the credibility of witnesses and sift the truth from the conflicting testimony.
Exceptions relating to the admission of testimony are without merit. While it is contended that one of the answers of plaintiff Steelman was not responsive and based on opinion and not on fact, there was no motion to strike. Hodges v. Wilson, 165 N.C. 323, 81 S.E. 340; Luttrell v. Hardin, 193 N.C. 266, 136 S.E. 726, and cited cases. A motion "to strike all testimony of plaintiff' entered at the...
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