Darroch v. Johnson

Denny, J. The defendant sets out in the record on this appeal forty-four assignments of error based on forty-five exceptions. However, he has not brought forward in his brief assignments of error Nos. 3, 4, 7 through 14, 39, 41 and 42. Hence, these assignments of error and the exceptions upon which they .are based are deemed abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 562; Harmon v. Harmon, 245 N.C. 83, 95 S.E. 2d 355. Assignments of error Nos. 15 and 16 are directed to the refusal of the court to submit the issues tendered iby the appellant and to the issues -submitted by the court. It is well settled that issues arise upon the pleadings only and not upon the evidential facts. G.S. 1-200; Nebel v. Nebel, 241 N.C. 491, 85 S.E. 2d 876; Wells v. Clayton, 236 N.C. 102, 72 S.E. 2d 16; Howard v. Early, 126 N.C. 170, 35 S.E. 258; Fortesque v. Crawford, 105 N.C. 29, 10 S.E. 910; Wright v. Cain, 93 N.C. 296; Miller v. Miller, 89 N.C. 209; McElwee v. Blackwell, 82 N.C. 345. In the instant cases there can be no doubt about the pleadings in each case being so east as to allege that the respective injuries sustained by each of the plaintiffs “were due to and were the direct result of the joint and several negligent acts -of the defendants which *312 concurred and combined to proximately cause the injuries sustained by the” respective plaintiffs. The complaint in each case sets out in detail the acts of the respective defendants Winfred Chalmers and Harold E. Johnson, which each plaintiff alleges “combined and concurred and proximately caused and produced said collision and the injuries therein sustained by this plaintiff, 'and that by reason of the joint and concurring negligence of said defendants the plaintiff has been seriously and permanently damaged and injured * * In the case of Barber v. Wooten, 234 N.C. 107, 66 S.E. 2d 690, the plaintiff was a passenger in a car operated by one McHomey, which was being driven southwardly on Highway No. 170, in Currituck County. Another car operated in the opposite direction by W. M. Wooten ran head-on into the McHorney oar. This collision, the plaintiff alleged, “set into sequence a chain of events * * * which proximately resulted in injuries to the plaintiff.” Immediately following the first collision in which plaintiff .suffered some injury, a Dodge truck driven by Adam Layden negligently ran into the rear of the McHorney car and knocked it sidewise on the road, inflicting additional injuries. Shortly after the Layden collision and while McHorn-ey’s car was immobile on the right-hand side of the highway, Clyde C. Scaff, driving a 1949 Ford convertible southwardly along the highway, negligently ran into the side of McPIorney’s ear, inflicting additional injuries to plaintiff. The complaint alleged that all -three of the -defendants were j ointly, concurrently and successively negligent in proximately causing the injuries to the plaintiff. Separate demurrers were filed by the defendants for dual misjoinder of parties and causes of action. The demurrers were overruled and they -appealed. The appellants took the position that the negligence of Wooten came to an end before the Layden truck struck the McHomey car and that the negligence of both Wooten and Layden had spent itself before the Scaff car came upon the scene, and that, therefore, the negligence of each defendant was separate and distinct from the negligence of the others, resulting -in three -separate and distinct causes of action -against three -separate and disconnected defendants. In speaking for the Court, Stacy, C. J., said: “It will be noted the complaint alleges a sequence of events which successively, concurrently and jointly -produced the plaintiff’s injuries. The defendants -are sought to be held liable as joint tort feasors. Levins v. Vigne, 339 Mo. 660, 98 S.W. 2d 737, and 4 Blashfield, Sec. 2552. The plaintiff alleges successive, joint and concurrent torts which in their cumulative effect produced her injuries. *313 “There may bo one or more proximate causes of an injury. These may originate from separate and distinct sources or agencies operating independently of each other, yet if they join and concur in producing the result complained of, the author of each cause would be liable for the damages inflicted, and action may be brought against any one or all as joint tort-feasors. White v. Carolina Realty Co., 182 N.C. 536, 109 S.E. 564.” In light of the facts in the case now 'before us, it would seem the plaintiffs were justified in alleging that their respective injuries were caused by the joint and concurrent negligence of the defendants. Therefore, they had the right to have the issues as raised by the pleadings submitted to the jury. In Potato Co. v. Jeanette, 174 N.C. 236, 93 S.E. 795, quoting from Clark v. Guano Co., 144 N.C 64, the Court said: “ ‘The court below need not submit issues in any particular form. If they are framed in such a way as to present the material questions in dispute, and so as to enable each of the parties to have the full benefit of his contention before the jury, and a fair chance to develop hie case, and if, when 'answered, .the issues are sufficient to determine the rights of the parties and to support the judgment, the requirement of the statute is fully met.’ ” The appellant herein contends that he was not permitted to present his contentions to the jury under the issues submitted. In the case of Lewis v. Hunter, 212 N.C. 504, 193 S.E. 814, the plaintiff’s intestate was struck by the car of one defendant and carried on the fender thereof for some 50 to 70 feet before rolling off and being struck by the ear being operated by the other defendant. The first issue submitted to the jury was: “1. Was the death of plaintiff’s intestate caused by the negligence of the defendants, or any of them, ■as alleged in the complaint, and if so, by which defendant or defendants? Answer: ‘Yes, all three.’ ” Both defendants appealed. The defendant Hunter assigned as error the issues as submitted. The Court said: “This assignment of error cannot be sustained since the issues afforded full opportunity to the appellant to present his theory of the case, namely, the absence of negligence on his part and the presence of contributory negligence on the part of the intestate.” In the instant case the defendant was not in any manner prevented from presenting his contention to the effect that he was not negligent. This he did, but, of course, was compelled to do so in light of the sharply conflicting evidence — conflicting evidence which hadi to be resolved by the jury. There was, however, no conflicting evidence as *314 to the negligence of the defendant Winfred Chalmers. These assignments of error are overruled. Assignments of error Nos. 33, 36, 37 and 38 are to various portions of the eharge relating to negligence .and joint and concurring negligence, which «over several pages of the record and will not be set out herein. However, in our opinion, the parts of the charge complained of in these assignments of error were not prejudicial to the .appellant's rights. It is olear that under the instructions of the court, before the jury could determine whether the joint and concurrent negligence of the defendants proximately caused the injuries to the plaintiffs, the jury was required to determine whether or not the respective defendants were negligent and whether such negligence was the proximate cause or one of the proximate causes that produced the injuries to the plaintiffs. Hence, we hold there -is no merit in these assignments of error. The appellant’s assignments of error Nos. 1, 2, 5 and 6 are directed to the admission of the testimony of the witnesses James Colville and A. K. Darroch to the effect that in their opinion the defendant Johnson was operating his car at the time he came around the curve in the highway, just before the collision, at a speed of 60 miles per hour or better, citing Fleming v. Twiggs, 244 N.C. 666, 94 S.E. 2d 821. In the Fleming case, the witness, who was sitting in her husband’s parked oar, testified that she did not see the Twiggs car until she looked back and it was within seven to nine feet of the back of her car and she looked away before the Twiggs oar hit her father who had just walked behind her car. This Court held her testimony as to the speed of the Twiggs car was without probative value. This is a far cry from observing a car or oars .approaching the witnesses in the instant case for a distance of 75 to 100 yards. The evidence complained of was admissible, its weight and credibility was for the jury. Lookabill v. Regan, 247 N.C. 199, 100 S.E. 2d 521, and cited oases. These assignments of error are overruled. The remaining assignments of error have been carefully examined and in our opinion they present no prejudicial error that would justify a new trial. In the trial below there was no error in law. No Error.