Wells v. . Burton Lines, Inc.

DeNNY, J. The appellant assigns as error the refusal of the court below to allow his motion for judgment as of nonsuit as to both plaintiffs ; and for allowing the motion of Burton Lines, Inc., for judgment as of nonsuit. The appellant states in his brief that he “does not contend that plaintiffs were contributorily negligent, but that the plaintiff Stanley’s negligence was the sole proximate cause of the collision.” In view of this contention, we do not see how the appellant can contend that the court committed error in allowing the motion of the defendant Burton Lines, Inc., for judgment as of nonsuit. We think there was sufficient evidence adduced in the trial below as to the negligence of the defendant Johnson to carry the case to the jury. According to his pleadings, the plaintiff Stanley’s car at the time of the collision, was being driven at a lawful rate of speed and in a lawful manner. 'Moreover, his own testimony is.to the effect that he did not see the parked truck on his side of the highway until he was within approximately 30 feet of it; he applied his brakes, turned cross-ways of the road, came to a dead stop on the west side of the highway directly in front of the plaintiff’s approaching car. We think this evidence is sufficient to overcome a motion for judgment as of nonsuit. The ruling of the court below in overruling the defendant Johnson’s motion for judgment as of nonsuit as to both plaintiffs and allowing the motion of the Burton Lines, Inc., for judgment as of nonsuit, will be *425 upheld. Weston v. R. R., 194 N. C., 210, 139 S. E., 237; Smithwick v. Colonial Pine Co., 200 N. C., 519, 157 S. E., 612; Powers v. Sternberg, 2, 13 N. C., 41, 195 S. E., 88; Lee v. R. R., 212 N. C., 340, 193 S. E., 395; Clarke v. Martin, 217 N. C., 440, 8 S. E. (2d), 230; Beck v. Hooks, 218 N. C., 105, 10 S. E. (2d), 608; Stewart v. Stewart, 221 N. C., 147, 19 S. E. (2d), 242; Allen v. Bottling Co., 223 N. C., 118, 25 S. E. (2d), 388. The plaintiffs were permitted to testify, over the objection of the appellant, to a conversation the appellant bad with them while they were in the hospital, and in which conversation they testified the appellant told them the collision was his fault. The admission of this testimony is assigned as error. It is not contended that the statement of the appellant was a part of the res gestm as it was in Austin v. Overton, 222 N. C., 89, 21 S. E. (2d), 887, where the defendant remarked, “It was my fault.” There the Court said, “The conclusion is a legal one, determinable alone by the facts. It is not supposed the defendant intendéd by this statement — which he denies making — to concede more than his own negligence.” The appellant in the instant ease denies that he told the plaintiffs that the collision was his fault. However, we think the evidence admissible under the rule stated by Winborne, J., in Hobbs v. Queen City Coach Co. in 225 N. C., 323, 34 S. E. (2d), 211, as follows: “It is not necessary to the competency of an admission by party to the record that it shall have been made as part of the res gestm. It is a rule of evidence that admissions when offered as those of a party to the record are competent against him when, the admissions are against his interest, material and pertinent or relevant to an issue in the case, and offered when the declarant is a party to the record at the time of the offer. Such admissions are original, primary, independent and substantive evidence of the facts covered thereby, and may be used to make out the opponent’s case by proving or disproving the facts in issue. 10 C. J. S., 1091, Evidence,- et seq. IY Wigmore on Evidence, 3d Ed., 1078.” "We have carefully examined the several exceptions and assignments of error to his Honor’s charge, and some of them, if considered separate and apart from the charge as a whole, might have some merit, but when the charge is considered contextually as it must be, it is free from reversible error. S. v. Lee, 192 N. C., 225, 134 S. E., 458; S. v. Elmore, 212 N. C., 531, 193 S. E., 713; S. v. Smith, 221 N. C., 400, 20 S. E. (2d), 360; S. v. Grass, 223 N. C., 31, 25 S. E. (2d), 193. The remaining assignments of error are without merit. In the trial below we find No error.