Yates v. Thomasville Chair Co.

ScheNck, J. The appellant assigns as error the refusal of the court to grant its motion for judgment as of nonsuit lodged and renewed when the plaintiff bad rested her case and at the close of all of the evidence. C. S., 567. These assignments of error cannot be sustained. There is evidence tending to show that the defendant’s truck was being operated at a greater rate of speed than was allowed by law, and that the brakes thereon were inadequate and not sufficient to control it when in use. It was therefore proper to submit the questions to the jury as to whether the defendant was negligent and as to whether this negligence was a proximate cause of the plaintiff’s injuries. Newman v. Coach Co., 205 N. C., 26. The appellant also assigns as error the refusal of the court to sustain its objections to certain questions and answers propounded to and made by witnesses for the plaintiff, relative to their opinion as to the mental capacity of the plaintiff at the time she signed the release of the defendant from any claims arising out of the collision between the two automobiles, and at the time she endorsed the draft sent her in payment of the release. The witnesses were the physicians who saw and treated the plaintiff in the hospital and were admitted experts, and were interrogated and answered substantially as follows: “Q. Doctor, do you have an opinion satisfactory to yourself whether or not Mrs. Yates on 20 December, 1934, and on 24 December, 1934, bad sufficient mental capacity to execute the release and endorse the draft, and to understand the nature and full extent and effect thereof ? “A. I have. “Q. What is your opinion? “A. She did not have.” *202 These answers were based upon the personal observation of the expert witnesses of the plaintiff, and come within a well-recognized exception to the general rule that a witness can speak only of facts within his knowledge. As was said in Summerlin v. R. R., 133 N. C., 551, “Succinctly stated, the rule is that the expert must base his opinion upon facts within his own knowledge, or upon the hypothesis of the finding by the jury of certain facts recited in the question.” The testimony which is the subject of these exceptive assignments of error falls within the first category, as it is all based upon facts within the knowledge of the witnesses. N. C. Handbook of Evidence (Lockhart), par. 204, p. 243, and cases there cited. See, also, Winborne v. Lloyd, 209 N. C., 483. A careful examination of the record discloses no reversible or prejudicial error, and for that reason the judgment of the Superior Court must be affirmed. No error.