Harris v. Draper

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; *224 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. *225 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.