Swinson v. Nance
| Decision Date | 14 June 1941 |
| Docket Number | 666. |
| Citation | 15 S.E.2d 284,219 N.C. 772 |
| Parties | SWINSON et al. v. NANCE. |
| Court | North Carolina Supreme Court |
[Copyrighted Material Omitted]
As the result of an automobile collision, separate suits were brought by the four plaintiffs against the defendant, all claiming personal injury and damage sustained through defendant's negligence, and the plaintiff, J. T. Swinson claiming in addition, damages for injury to his car. For purposes of trial the four suits were consolidated, without objection, and tried. Issues relating to negligence contributory negligence and damages in each case, were submitted to the jury and answered in favor of all the plaintiffs, respectively, and defendant appealed.
Under appropriate pleadings evidence was introduced by plaintiffs and defendant which, as pertinent to this appeal, is substantially as follows:
J. T. Swinson testified that he was driving an automobile on Sprague Street in the City of Winston-Salem at the time of the collision, in which Aaron Swinson, Mrs. Althea Swinson and Mrs. Ruth Swinson were passengers. They were taking Mrs. A. J. Swinson to the Baptist Hospital for an examination. The witness and his wife were in the front seat and the brother and his wife in the rear seat, the brother on the right.
Sprague Street runs East and West and Main Street runs North and South. Sprague Street is about 40 feet wide and Main Street 38 feet wide. Approaching and intending to cross the intersection of Main Street, witness says he slowed down to about 10 miles an hour, looking both ways. He could see to the right about 200 feet, and saw no one approaching. According to his testimony, when he got about midway of the street he saw a car approaching. It collided with witness' car about the curb line, or what would be the curb line if extended, on the West side of the street, striking his car about the middle. The car turned over twice and landed on the opposite side of the street, about 40 feet away, headed in a direction opposite to that they were traveling.
Continuing his testimony, approaching Main Street there were obstructions consisting of shrubbery, a house on a bank which was about four feet from the road, and maple trees along the side. The view of the stop sign was obstructed. It was about 12 to 20 feet from the entrance into Main Street where witness could first see to his right. Witness saw a stop sign that afternoon "about halfway between the sidewalk and the road" in front of the house. The sign post is to the left of the road, the sign part six feet from the ground. It was yellow. Witness' view of Main Street was obscured by a hedge of evergreen trees, some as high as his head. Witness saw defendant when he was about 30 feet away, and believes he was making 70 miles an hour, says Nance applied brakes and was going about 30 miles an hour when the cars collided; says Nance told him he could not stop, that if he had turned to the left he would have turned over, and if he turned to the right he would have hit a post, so he had to hit the Swinson car "center". Other testimony relates to the injuries received in the collision.
On cross-examination, several exceptions were taken to the exclusion of evidence from this witness relating to his conviction on a criminal charge of reckless driving growing out of this transaction.
A. J. Swinson testified that his brother came to "a slow stop" before entering Main Street, or very nearly stopped, and looked to the right, then released his brakes. He testified the Nance car was coming at a rate of 60 or 70 miles an hour. He further testified as to his injuries. On cross-examination, he testified that he wanted to take his wife to the hospital for examination and his brother volunteered to take them; testified the stop sign was not where it could be seen.
Mrs. A. J. Swinson testified that she looked to the right on going into Main Street and could not see anyone approaching. She gave evidence tending to corroborate other witnesses as to the circumstances of the collision.
Pertinent evidence for the defense contradicted that of plaintiff in important particulars.
The defendant, E. E. Nance, testified that side streets across Main Street all had stop signs except those that had stop lights. He was going, he testified, south down Main Street toward Lexington, and when he approached Sprague Street, just before he got to the street he saw a car coming down Sprague Street making 50 or 60 miles an hour. Witness expected him to stop, but he did not. He ran in front of witness' automobile and they collided. There was a stop sign on each side of the street, consisting of a disc 24 inches across, containing the word "Stop". Witness was traveling about 25 or 30 miles an hour and applied brakes when he saw the car was not going to stop. Witness thinks he was in the intersection first. The collision occurred when witness was about 8 or 9 feet within the intersection. The Swinson car had already passed the stop sign when witness saw it. Witness denied that he had told J. T. Swinson that witness was going too fast to stop.
On cross-examination, witness stated that he was going about 10 or 12 miles an hour at the time of the collision. Swinson's car was about 15 feet from the intersection when he saw it, between 30 and 40 feet away. Witness was not looking in that direction; didn't know which car got to the intersection first. Witness doesn't know why his car hit the Swinson car right in the side.
Defendant introduced ordinances of the City of Winston-Salem designating Main Street as a "through highway" and making it unlawful to enter such highway from an intersecting street without stopping, where there is a stop sign.
Dorothy Jones testified for the defense as to the visibility of the stop sign.
Mrs. Belle Heath testified that she saw the Swinson car approaching at a rapid rate of speed and exclaimed to her sister, "Gosh, why don't they slow up!" This evidence as to what she said to her sister was stricken out and defendant excepted. She estimated the speed of the car as from 40 to 45 miles per hour.
Mrs. E. M. Johnson testified that the Swinson car was going 40 to 45 miles an hour and did not check up speed at all. She also gave evidence as to the visibility of the stop sign.
J. L. Heath testified that just before the collision the Swinson car passed him at a rapid rate of speed, 45 or 50 miles per hour, and made no effort to stop. The Nance car was in the intersection first.
On cross-examination, this witness was questioned as to whether certain statements had been made on a former trial. On redirect examination, several questions were addressed to him as to whether the testimony on that trial was the same as at present.
The evidence was excluded and exceptions were taken. Later the plaintiffs introduced the transcript of the evidence of this witness at the former trial in question.
Other evidence relates principally to the injuries sustained in the collision and damage to the Swinson car.
The plaintiff, J. T. Swinson, was recalled. The Court excluded an inquiry whether the witness had not been convicted of reckless driving in connection with this collision, and defendant excepted.
The defendant moved for judgment of nonsuit at the conclusion of all the evidence, and the motion was overruled. Defendant excepted.
The defendant made numerous exceptions to the refusal of the Court to give instructions requested and to the instructions as given, which will be noted in the opinion where thought material.
In apt time, defendant excepted to refusal to set aside the adverse verdict, and to the signing of the judgment, and appealed.
Don A. Walser, of Lexington, for appellant.
D. A. Troutman, of Thomasville, and Phillips & Bower and McCrary & DeLapp, all of Lexington, for appellees.
The defendant took 39 exceptions to the conduct of the trial, all of which have been brought forward. It will be impossible to give these exceptions individual attention in formulating our opinion, although, of course, they have not been overlooked in our study of the case. We necessarily confine our observations to the more challenging objections.
There are three exceptions to the exclusion of evidence offered by the defendant which merit attention.
In the testimony of Mrs. Belle Heath, who was an eye-witness to the collision, the following occurred:
Upon objection by the plaintiffs, a part of this answer was stricken out, the Court holding that what the witness said to her sister was incompetent. The defendant contends that this was a spontaneous exclamation, part of the res gestae, which ought to have been admitted. We doubt if the admission of this evidence could be held for error under the decisions of this Court. Young v. Stewart, 191 N.C. 297, 131 S.E. 735, and cited cases. But this does not mean that its exclusion is necessarily error. Some discretion must be conceded to the trial court in the admission of evidence of this sort, 20 Am.Jur. p. 557, § 663, especially in marginal cases. We doubt whether the declaration here is so clear in its implication as to qualify under the rule. At any rate, the witness testified fully as to the speed of the Swinson car, and we do not think the defendant was materially prejudiced by its exclusion.
On cross-examination, J. L. Heath, witness for defendant, was questioned with regard to statements made by him on a former trial involving facts of the collision. On redirect examination, at the instance of the defendant, he was asked several questions,...
To continue reading
Request your trial