Wesley v. Greyhound Lines, Inc., 7910SC733

• Decision Date: 05 August 1980
• Docket Number: No. 7910SC733,7910SC733
• Citation: 47 N.C.App. 680,268 S.E.2d 855
• Parties: Lucille Gloria WESLEY v. GREYHOUND LINES, INC.
• Court: North Carolina Court of Appeals

Page 855

268 S.E.2d 855

47 N.C.App. 680

Lucille Gloria WESLEY v. GREYHOUND LINES, INC.

No. 7910SC733.

Court of Appeals of North Carolina.

Aug. 5, 1980.

Thorp, Anderson & Slifkin by William L. Thorp and Anne R. Slifkin, Raleigh, for plaintiff.

Johnson, Patterson, Dilthey & Clay by I. Edward Johnson, Robert W. Kaylor, and Alene M. Mercer, Raleigh, for defendant.

ERWIN, Judge.

Defendant's Appeal

Defendant's initial assignment of error is that the trial court erred in permitting testimony concerning the neighborhood surrounding its bus station and the type of individuals who frequented the area. We find no error.

The sole basis for defendant's objection is that the objected to testimony was highly prejudicial. It is the rule of law in our State that all relevant evidence is admissible unless excluded by some specific rule, 1 Stansbury's N.C. Evidence (Brandis rev. 1973), § 77, and relevant evidence will not be excluded simply because it may tend to prejudice the opponent for the cause of the party who offers it. 1 Stansbury's N.C. Evidence (Brandis rev. 1973), § 80. Here, plaintiff offered the objected to testimony to show that defendant had knowledge or should have had knowledge which would have forewarned it of the imminency of attack or assault on one of its passengers the plaintiff. In 1 Stansbury's N.C. Evidence (Brandis rev. 1973), § 83, p. 259, it is stated: "Knowledge may be proved by the conduct and statements of the party himself, by statements made to him by other persons, by evidence of reputation which it may be inferred had come to his attention, and by various circumstances from which an inference of knowledge might reasonably be drawn." (Footnotes omitted.)

Evidence that defendant's bus station was located in a high crime area, that bums, prostitutes, and their pimps frequented the bus station, that fights from area night clubs frequently spilled into the streets, that drug arrests were common in the neighborhood, and that some of these very same characters were loiterers-in-residence at defendant's bus station was clearly admissible and relevant to show defendant's knowledge of the need for insuring adequate protection of passengers going to, going from, and waiting in the bus station. This is especially the case where a carrier is concerned, for the law imposes upon a carrier a special duty to protect passengers from assault, abuse, or injury at the hands of fellow passengers or third persons, and the carrier is responsible to a passenger for a wrong inflicted by an intruder, as in the instant case, at least, where the carrier or its servants knew or ought to have known that it was threatened. See Pride v. R.R., 176 N.C. 594, 97 S.E. 418 (1918). We are reluctant to state the rule in its entirety, since we are called on to examine and clarify it at a later point herein. For now, we believe the portion as cited will suffice. Furthermore, we overrule defendant's contention that the trial court erred in instructing the jury on the foregoing evidence.

As its next assignment of error, defendant contends that the trial court erred in stating in its charge to the jury that "it does not deny that the plaintiff was a victim of a criminal assault at its Raleigh terminal, or that she sustained injury and damage."

In a pretrial order signed by respective counsel and approved by Judge Godwin, defendant stipulated that "(p)laintiff was sexually assaulted in the lounge of the women's restroom of the Greyhound Bus Station by Darnell Banks. Darnell Banks was found guilty of this attack."

Nowhere in the pretrial order or at trial did defendant stipulate that plaintiff sustained injury or damage. Ordinarily, a charge on the law relative to facts not shown in the evidence is prejudicial. 1 Strong's N.C. Index 3d, Appeal and Error, § 50.1, p. 320. However, no prejudicial error warranting a new trial occurs where it is clear from the charge, as here, that: (1) the jury could not have been misled by the misstatement; (2) the trial court at a later point in the charge instructed the jury that it was for them to determine whether plaintiff had sustained injury and damage; and (3) the trial court summarized both parties' contentions arising from the evidence as to the issues of injury and damage. See 1 Strong's N.C. Index 3d, Appeal and Error, § 50.2, p. 321.

Defendant contends that the trial court erred in instructing the jury to ignore its original instructions on the first issue submitted, because the jury could reasonably thereafter have disregarded the previously given instructions on the nature of the lawsuit, proximate cause, greater weight of the evidence, et al.

While the trial court's instruction might have been more artfully drawn, we do not believe that the jury was misled. Immediately after the contested instruction, the jury's foreman asked: "Your Honor, this morning there was a question on the word imminent, and I anticipate that the same question will come up again when we go back. Does that refer to time span or likelihood?" This incident would indicate that the jury was very well aware of its continuing duty to consider the court's earlier instructions as they related to burden of proof, proximate cause, et al., and correctly disregarded the court's instructions as to the other matters. We find no prejudicial error.

Similarly, we reject defendant's contention that the trial court's use of the term probable cause instead of proximate cause in one instance was prejudicial error. The trial court had correctly set out and defined the term proximate cause previously. In reiterating its previous instructions to the jury, the trial court committed a mere lapsus linguae in saying probable cause when he meant to say proximate cause. The instruction was altogether correct in all other respects, and we find no prejudicial error, for the trial court's error was mere inadvertence.

As a further assignment of error, defendant contends that the trial court erred in permitting testimony by a clinical psychologist as to the permanency of plaintiff's injuries and the indicatory symptoms. We disagree.

A psychologist in the rendering of professional psychological services may apply psychological principles and procedures for the purposes of understanding, predicting, or influencing the behavior of individuals. G.S. 90-270.2(e). A diagnosis by a psychologist that an external occurrence such as a sexual assault may have permanent psychological effects is clearly within his or her realm of competence. We are aware that G.S. 90-18 generally precludes the practice of medicine by an individual not licensed in accordance with the provisions of Article 1 and that a person is regarded as practicing medicine within the meaning of Article 1 if he "shall diagnose or attempt to diagnose . . . or attempt to treat . . . any human ailment, physical or mental." G.S. 90-18. While not specifically exempted by G.S. 90-18, a psychologist who limits himself to the practice of psychology and the rendering of professional psychological services as defined in G.S. 90-270.2(d) and (e) is exempt from G.S. 90-18 to that extent, and we so hold. Cf. Maloney v. Hospital Systems, 45 N.C.App. 172, 262 S.E.2d 680 (1980) (nurse who was an expert in field of intravenous therapy competent to testify, even though she was not licensed to diagnose illness or injury or prescribe treatment).

Defendant's exception to Dr. Cogwell's expert testimony on the permanency of plaintiff's injuries on the ground that it is speculative is meritless. Defendant relies on our decision in Garland v. Shull, 41 N.C.App. 143, 254 S.E.2d 221 (1979). In Garland, a physician was allowed to testify over defendant's objection that plaintiff's "headaches may persist for years at least. An indefinite period of time." We granted defendant a new trial on the grounds that:

" '(A) physician testifying as an expert to the consequences of a personal injury should be confined to certain consequences or probable consequences, and should not be permitted to testify as to possible consequences.' Fisher v. Rogers, 251 N.C. 610, 614, 112 S.E.2d 76, 79 (1960). See generally, Annot., 75 A.L.R.3d 9 (1977). Testimony tending to indicate that an event may occur is an indication that the occurrence of the event is certain or probable."

Id. at 147, 254 S.E.2d at 223.

In the instant case, when asked about the permanency of plaintiff's injuries, Dr. Cogwell stated:

"My opinion is that some of the problems are probably not permanent and that others are. The ones that I would guess to be permanent include a generally increased fearfulness, particularly around strangers and particularly around men. A generally decreased level of people in general, but particularly in people that she does not know well. I would expect her to continue to have occasional nightmares, although I would expect those to continue to decrease as time goes on and I would expect there to be a continuing fearfulness in physical situations that are similar to the one in which she was attacked."

While Dr. Cogwell did use the word, "guess," in her answer, we do not perceive the same speculativeness or conjecture in her answer as evidenced in Garland. It is clear that Dr. Cogwell's opinion was not a mere guess, but rather a statement of probability. We find no error in the admission of her testimony. Moreover, Dr. Cogwell's testimony as to the permanency of some of plaintiff's injuries was sufficient basis for introduction of the mortuary tables, and the trial court's jury charge as to these matters was not error. See Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965), and McCoy v. Dowdy, 16 N.C.App. 242, 192 S.E.2d 81 (1972).

An ancillary argument presented by defendant is that Dr. Cogwell's contact with plaintiff was so minimal as to provide an insufficient basis for admitting her testimony. Defendant calls to our attention our decision in Ward v. Wentz, 20 N.C.App. 229, 201 S.E.2d 194 (1973).

In Ward v....