Watson Ex Rel. Watson v. Stallings

Bobbitt, J. Whether the evidence was sufficient to warrant the submission of the first issue and the jury’s finding in favor of plaintiff thereon is not presented. The judgment from which plaintiff appeals is based on the jury’s answer to the contributory negligence issue. Prior to trial, plaintiff examined defendant adversely as provided in G.S. Chapter 1, Article 46. At trial, defendant did not testify. He offered in evidence the record of his testimony at said adverse examination. Plaintiff’s objection thereto was overruled and he excepted. Assignment of Error No. 2, based on this exception, is without merit. G.S. l-568.24(a) provides: “Upon the trial of the action or at any hearing incident thereto any party may offer in evidence the whole, but, if objection is made, not a part only, of any deposition taken pursuant to this article, but such deposition shall not be used as evidence against any party not notified of the taking thereof as provided by G.S. 1-568.14.” (Our italics.) Earlier statutes relating to the examination of parties, G.S. 1-568 through G.S. 1-576, Volume 1, General Statutes of North Carolina of 1943 (previously codified as C.S. 899-907, inclusive), were repealed by Session Laws of 1951, Chapter 760. G.S. 1-571 (previously *192 C.S. 902) provided in part: “The examination shall be taken and filed by the judge, clerk, or commissioner, as in case of witnesses examined conditionally, and may be read by either party on the trial.” Under this statutory provision, essentially the same in this respect as G.S. 1-568.24(a), it was held that a party who was examined adversely was entitled to introduce in evidence at trial the record thereof. McGraw v. R. R., 209 N.C. 432, 184 S.E. 31; Beck v. Wilkins-Ricks Co., 186 N.C. 210, 119 S.E. 235, and cases cited. Plaintiff assigns as error extended excerpts from the court’s instructions to the jury. The instructions set forth in the excerpts on which Assignments Nos. 4 and 6 are based relate to legal principles pertinent to the first (negligence) issue. Although these instructions appear to be in accord with our decisions, plaintiff is in no position to complain of error, if any, therein, since the first issue was answered in his favor. Anderson v. Office Supplies, 236 N.C. 519, 73 S.E. 2d 141, and cases cited. Assignment No. 3 is based on the following excerpt: “Another section of the statute, 20-156, provides in part that the 'Driver of a vehicle entering a public highway from a private road, or drive, shall yield the right of way to all vehicles approaching on such public highway,’ and that statute would apply to the driver of an animal, that is the rider of a pony, as well as to the driver of a motor vehicle, and under that statute it would be the duty of a person driving a horse, or riding a horse, or driving a motor vehicle, who is coming out of a private driveway onto a main highway, to yield the right of way to vehicles on the main highway, and it would be the duty of such a person to use reasonable care, to look to see if there is any approaching traffic, and a failure to do so would be negligence. It is the duty of a driver of an animal, or a vehicle, coming out of a private driveway on the public highway, as I told you, to stop and to yield the right of way to the motorist who is on the main-traveled highway.” Plaintiff asserts as error “that the Court charged upon the infant plaintiff riding on his pony the same duty of care as a person operating a motor vehicle.” The quoted instruction, in respect of the duty under G.S. 20-156(a) of a motorist entering a public highway from a private road or drive, is in accord with our decisions. Equipment Co. v. Hertz Corp. and Contractors, Inc., v. Hertz Corp., 256 N.C. 277, 286, 123 S.E. 2d 802, 809; Gantt v. Hobson, 240 N.C. 426, 82 S.E. 2d 384; Garner v. Pittman, 237 N.C. 328, 75 S.E. 2d 111. G.S. 20-171 provides: “Every person riding an animal or driving any animal drawing a vehicle upon a highway shall be subject to the provisions of *193 this article applicable to the driver of a vehicle, except those provisions of the article which by their nature can have no application.” (Our italics.) Both G.S. 20-156 and G.S. 20-171 are provisions of Article 3 of Chapter 20 of the General Statutes. Prior to the quoted instruction, the court had charged the jury with reference to the second (contributory negligence) issue as follows: “In this case, all the evidence tends to show that at the time of this incident the minor plaintiff was only eleven years of age and I instruct you that there is a •prima jade presumption that a child between the ages of seven years and fourteen years is incapable of contributory negligence, but this presumption may be overcome. It is rebuttable by evidence that the child in fact was capable of contributory negligence. Now, negligence on the part of a child is to be measured by his age and his ability to discern and appreciate the circumstances of the danger. He is not chargeable with the same degree of care as an experienced adult, but is only required to exercise such prudence as one of his years may be expected to possess. A child must exercise that degree of care commensurate with the child’s knowledge, age and capacity and experience, and the failure to do so would be negligence and if a proximate cause, it would be contributory negligence.” This instruction is in substantial accord with our decisions. Wooten v. Cagle, 268 N.C. 366, 150 S.E. 2d 738, and cases cited. In determining negligence, the standard is always the conduct of a reasonably prudent person. When a statute prescribes a standard, the standard so prescribed by the General Assembly is absolute. Bondurant v. Mastin, 252 N.C. 190, 196, 113 S.E. 2d 292, 296, and cases cited. Although the standard is constant, “the degree of care which a reasonably prudent man exercises, or should exercise, varies with the exigencies of the occasion.” Raper v. McCrory-McLellan Corp., 259 N.C. 199, 204, 130 S.E. 2d 281, 284, and cases cited. Thus, the standard of care for the rider of a horse or pony entering upon a public highway from a private road is constant. In applying the standard to the facts of this case, Benjie’s age, experience, capacity and knowledge are “exigencies of the occasion” to be considered in determining whether he exercised the degree of care a reasonably prudent boy of his age, experience, capacity and knowledge should and would have exercised under the same or similar circumstances. With reference to the excerpt to which Assignment No. 5 relates, plaintiff asserts “the Court charged the minor plaintiff with the same duty of care as a person operating a vehicle under his own *194 control.” It is noted there was no evidence that the pony was not at all times under Benjie’s control. In this excerpt, the court, after referring again to the presumption that plaintiff was incapable of contributory negligence, instructed the jury “if the defendant . . . has further satisfied you by the greater weight of the evidence that the plaintiff failed to keep a reasonably proper lookout, or failed to yield the right of way to the defendant in entering a public highway from a private road, or that he rode the pony out into the highway without exercising for his own safety that degree of care commensurate with his age and capacity, that such conduct on the plaintiff’s part would constitute negligence, and if the defendant has further satisfied you by the greater weight of the evidence that such negligence of the plaintiff in any one or more of these respects was a proximate cause, or one of the proximate causes of the collision and resulting injuries and damages, it would then be your duty to answer the second issue, ‘Yes.’ If the defendant has failed to so satisfy you by the greater weight of the evidence, it would then be your duty to answer that issue, ‘No.’ ” When the charge is considered ■ contextually, we think the court’s instructions made -it plain that (contributory) negligence on the part of Benjie was to be determined on the basis of whether on this occasion he exercised the degree of care a reasonably prudent boy. of his age, experience, capacity and knowledge should and would have exercised under the same or similar circumstances. Having instructed the jury to this effect, as quoted above, continuous repetition was unnecessary. In Assignment No. 1, plaintiff asserts as error the denial of his motion to set aside the verdict as being contrary to the greater weight of the evidence. Judge Hall, in the exercise of his discretion, denied the motion. There was ample evidence to support the verdict as to the second issue. No abuse of discretion having been shown, the assignment is without merit. No error.