Harris v. Draper, 233 N.C. 221 (1951)

Feb. 2, 1951 · Supreme Court of North Carolina

233 N.C. 221

ESTELLE HARRIS, Admx., v. E. R. DRAPER.

(Filed 2 February, 1951.)

1. Automobiles § 18g (4) —

The driver of a car hit by another at right angles at an intersection is competent to testify as to his opinion of the speed of such other car when it struck the ear he was driving, the weight and credibility of his testimony being for the jury.

2. Appeal and Error § 39b—

Where excluded evidence is germane to the issues of negligence and contributory negligence, error in its exclusion cannot be rendered harmless by the verdict when only one of these issues is answered in favor of the party offering the testimony.

3. Trial § 31b: Appeal and Error § 6c (6) —

Tlie court misquoted the testimony of a witness on a crucial point. Plaintiff’s counsel called the matter to the court’s attention and the court replied that the statement was in accord with its recollection, at which counsel for defendant interjected agreement. Held: The failure of the court to correct the inadvertence must be held for prejudicial error upon exception and assignment of error properly presented.

4. • Appeal and Error § 39f—

Where the court, instead of correcting an inadvertence in the statement of the testimony upon a crucial point, states that the narrative was in accordance with the court’s recollection, and the error is emphasized by the interjection of counsel for the opposing party that the narrative was in accordance with his recollection also, the error cannot be held cured by the court’s instruction that the jury should take its own recollection of the evidence and not that of the court or counsel.

5. Automobiles § 20b—

Where the owner of a car permits another to drive it for exclusive personal purposes of such other person, and rides in the car solely for the purpose of returning the car to his home after such other person has completed his trip, whether the driver is the agent of the owner while making the trip, quaere, but it would seem to be a question for the jury.

Appeal by plaintiff from Sharp, Special Judge, February-Marcb Term, 1950, of Durham.

Civil action to recover damages for alleged wrongful death of plaintiff’s intestate and for damages to his automobile when plaintiff’s car, under the control and operation of Ervin Lee Green, collided with or was struck by defendant’s automobile at the intersection of U. S. Highway 15-A and N. C. Highway 264.

On Sunday afternoon, 31 October, 1948, plaintiff’s intestate allowed Ervin Green to use his Ford Sedan to take a girl friend from Durham to Raleigh and then to go on over U. S. Highway 15-A to his home in Creedmoor, plaintiff’s intestate going along in order to bring the automobile back from Creedmoor to Durham.

At the same time the defendant, E. R. Draper, was traveling in his Hudson Sedan over N. C. Highway 264 from Wake Forest to Durham. Both drivers were quite familiar with these highways, having traveled them frequently, and especially where they intersect about fifteen miles north of Raleigh.

Ervin Green testified that he approached the intersection at a speed of 30 or 35 miles per hour and “as I entered the intersection,” the overhead traffic signal light “was green for me.” He saw the defendant’s car approaching from the east on 264, but he was first to enter the intersection. “I was just about under the light when I was struck by the other car. . . . The front of the other car struck the right door of my car. I could tell at tbe time tbe other ear struck me bow fast it was going.” “Q. How fast?” Objection sustained. Exception No. 1. If allowed to answer, tbe witness would bave said “About 60 miles an bour.” Tbe Ford Sedan was knocked a distance of five or six feet by tbe impact and damaged considerably. Plaintiff’s intestate, wbo was sitting next to tbe rigbt-band door, was cut by flying glass and died on tbe way to tbe bospital.

Tbe defendant testified that be bad a conversation witb Ervin Green just after tbe collision. “I asked bim if be didn’t see tbe red light and be said be didn’t see tbe light until just before be went under it — he glanced up and saw tbe light. . . . He said be saw it just before be went under it.”

In charging tbe jury, tbe trial court quoted tbe defendant several times as saying Green told bim “be did not see tbe light was red ... or tbe red light until be was right under it.”

Whereupon counsel interposed:

“Mr. Bryant: Of course, as you instructed the jury, it is their recollection of tbe evidence, but it was my impression that Mr. Draper did not testify Green told him the light was red or be did not see the red light, but that be did not see tbe light until be got into tbe intersection, without making any statement as to its color.

“Court (resuming) : Well, gentlemen, it is my recollection he said Green told bim that when be ran under it be saw tbe light was red.”

“Mr. Fuller: That was my recollection, too.” Exception No. 4.

“(Court — resuming) : However, you will go by your own recollection and not by mine or by counsel. In any event, gentlemen, you will remember what tbe witness said.”

Tbe issues of negligence and contributory negligence were both answered in the affirmative, and from judgment thereon dismissing tbe action, plaintiff appeals, assigning error.

Victor S. Bryant, Robert I. Lipton, and Victor 8. Bryant, Jr., for plaintiff, appellant.

Fuller, 'Reade, Umstead •& Fuller for defendant, appellee.

Stacy, C. J.

Tbe question for decision is whether tbe trial and judgment can be sustained in tbe face of tbe exceptions shown in the record and debated on brief. We are constrained to answer in tbe negative.

First. Exception to Exclusion of Evidence: Tte witness, Ervin Green, if allowed to testify, would bave said the defendant’s car was traveling about 60 miles an bour when it struck the car be was driving. This proffered testimony was competent, its weight and credibility, of course, being for the jury. Hicks v. Love, 201 N.C. 773, 161 S.E. 394; Jones v. Bagwell, 207 N.C. 378, 177 S.E. 170; Tyndall v. Hines Co., 226 N.C. 620, 39 S.E. 2d 828; Brafford v. Cook, 232 N.C. 699.

True it is, tbe jury answered tbe issue of negligence in favor of tbe plaintiff, and tbis ordinarily might bave cured tbe error. In tbe instant ease, however, tbe proffered testimony was also competent on tbe issue of plaintiff’s alleged contributory negligence or tbe sole negligence of tbe defendant. Tbe vital question, debated on tbe bearing, was whether Green or tbe defendant entered tbe intersection against tbe red light.

Second. The Misquotation of Evidence in the Court’s Charge: After tbe court bad stated to tbe jury for tbe third time that, according to tbe defendant’s testimony, tbe driver of plaintiff’s intestate’s ear told tbe defendant immediately after tbe collision, “be did not see tbe light was red ... or tbe red light until be was right under it,” counsel for plaintiff arose and called tbe court’s attention to what be conceived an inadvertent misquotation of tbe evidence. Instead of referring to tbe record which would bave borne out plaintiff’s contention, tbe court replied: “It is my recollection that be said Green told him that when be ran under it be saw that tbe light was red.” And counsel for defendant also interjected : “That was my recollection, too.” Thus, instead of correcting tbe inadvertence, it was emphasized and fortified by tbe recollection of defendant’s counsel, which rendered tbe plaintiff’s last state worse than bis first.

Tbe fact tbe jury was immediately told they would not take the court’s recollection, or that of counsel, but would rely on their own memory of what tbe witness bad said was hardly sufficient to meet tbe objection interposed by counsel. The prejudicial emphasis and effect bad already been given and were allowed to stand without any change, modification, or correction.

It is tbe rule with us that when counsel deem tbe recitals of tbe court incorrect as to tbe facts of tbe case or tbe contentions arising thereon, tbe matter must be called to tbe court’s attention, either at tbe time or perhaps more appropriately at the close or just before tbe close of tbe charge, so as to afford an opportunity of correction; and where tbis is done, as here, and no correction is made, the party aggrieved must be given a bearing on appeal, if properly presented by exception and assignment of error. S. v. McNair, 226 N.C. 462, 38 S.E. 2d 514; S. v. Sinodis, 189 N.C. 565, 127 S.E. 601; S. v. Barnhill, 186 N.C. 446, 119 S.E. 894, 85 A.L.R. 541.

Then, too, it must be remembered tbe matter here complained of was deadly on tbe issue of contributory negligence, for an admission from Green that he entered tbe intersection against tbe red light was fatal to plaintiff’s cause under tbe theory of the trial.

Moreover, it may be doubted whether the court was justified in assuming Ervin Green to be the agent of plaintiff’s intestate and acting in the scope of such agency on the occasion in question. Plaintiff contends that her intestate was a guest in the car at the time and that he went along only to drive the car back to Durham after Green had reached his home in Creedmoor. The evidence appears to be susceptible of either interpretation, which would seem to require or indicate its submission to the jury on the point. Anno. 80 A.L.R. 291.

A new trial is made necessary by the exceptions. It is so ordered.

New trial.