Tyndall v. Harvey C. Hines Co, 386.

• Citation: 39 S.E.2d 828
• Decision Date: 30 October 1946
• Docket Number: No. 386.,386.
• Court: United States State Supreme Court of North Carolina
• Parties: TYNDALL . v. HARVEY C. HINES CO. et al.

39 S.E.2d 828

TYNDALL .
v.
HARVEY C. HINES CO. et al.

No. 386.

Supreme Court of North Carolina.

Oct. 30, 1946.

[39 S.E.2d 828]

Appeal from Superior Court, Lenoir County; C. Everett Thompson, Judge.

Action by Etta Ray Tyndall, by her next friend, Delia Tyndall, against Harvey C. Hines Company and Roy Linster Gray to recover for personal injuries sustained as a result of being struck by a truck owned by corporate defendant and operated by individual defendant. From a judgment for plaintiff, defendants appeal.

New trial.

Civil action to recover damages for personal injuries.

On June 12, 1944, about 3 p.m., plaintiff, her sister and her smaller brother were walking single file on the lefthand shoulder of Highway 258, going toward Kinston. They were about 300 yards from the crest of a hill to their rear. The highway, after reaching the crest of the hill, curved slightly to the right.

[39 S.E.2d 829]

At the same time defendant Gray was operating an ice cream truck, belonging to the corporate defendant, on said highway, going in the same direction. When the truck reached the crest of the hill it did not turn with the curve but continued in a straight direction across the left hand lane of traffic onto the left shoulder. There it struck plaintiff and inflicted certain bodily injuries. It also struck and killed her sister. It then cut back to the righthand shoulder, then again to the left, and stopped 224 yards from the point of impact.

Plaintiff offered evidence tending to show that the truck was being operated at from 50 to 60 m.p.h. There was evidence for defendants tending to show that the driver, just as he reached the crest of the hill, lost consciousness; that the automobile was being operated at a reasonable rate of speed, and that the steering apparatus suddenly and unexpectedly became locked or unworkable, thus preventing the driver from turning with the curve.

The usual issues of negligence and damages were submitted to the jury and answered in favor of plaintiff. The court entered judgment on the verdict and defendants appealed.

Allen & Allen and John G. Dawson, all of Kinston, for appellants.

J. A. Jones and Albert W. Cowper, both of Kinston, for appellee.

BARNHILL, Justice.

About an hour after the accident, T. W. Fearing, a State highway patrolman, went to the scene of the accident to make an investigation. He gave testimony as to the marks the truck made on the shoulders of the road and upon the grass. He testified they were not brake marks but were marks made when the truck made a sudden turn, thus shifting the weight to one side or the other. He was then asked this question:

"Mr. Fearing, leaving out of consideration for the purpose of this question any reference to the distances the bodies were found from the point of impact, and basing your opinion upon the marks you found made by the truck on the road immediately before and continuing through the point of impact and to the point where the truck was found by you, do you have an opinion satisfactory to yourself as to the rate of speed at which the truck was being driven at the time of the impact?"

Over the objection of defendants he was permitted to answer the question in the affirmative and to give his opinion that the truck was at the time being operated at a rate of speed of from 50 to 60 m.p.h.

The admission of this testimony is the basis of one of defendants' primary assignments of error. We are constrained to hold that the assignment is well advised and should be sustained.

The general rule is that a witness must speak to facts. Following this rule the courts originally confined opinion evidence to questions of science, art, or skill in some...