Hancock v. . Wilson

Olaekson, J. At the close of plaintiff’s evidence, and at the close of all the evidence, the defendants made motions in the court below for judgment as in case of nonsuit. C. S., 567. The court below overruled these motions, and in this we can see no' error. On a motion to nonsuit, the evidence is to be taken in the light most favorable to the plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom. The evidence of plaintiff fully sustained the allegations in the complaint. The testimony of J. 0. Eranklin, witness for plaintiff, was to *133 tbe effect that Luther H. Hancock, plaintiff’s intestate, was a taxicab driver in Washington, D. C., and drove a Diamond taxicab; that he was employed to drive his father, W. L. Franklin, and others to Gastonia, N. C., and they left Danville about 12:00 o’clock at midnight on Thursday, September 5, 1935. He testified in part as follows: “We were going toward Greensboro from Danville. The roads were a little slick; it was drizzling rain. We had an accident or a collision. We were going up this hill, and a bus was coming over the hill between Pelham and Euffin. I think the highway is pretty straight there. Way down below this hill is a curve. I was riding in the front seat of the taxicab with the driver. I saw this Greyhound bus coming over the hill. This bus ioas on the left-hand side of the road going north when it came over the hill on our side of the road, the right side going south; the Greyhound bus was on its left-hand side. Prior to the time we approached where I saw the bus we were on the right-hand side of the road going south in the direction of Greensboro. The bus was going north. This bus came over the hill and on the left-hand side of the road going north, and we ran a little off the road to the right to try to get out of the way and the bus crashed into us, and that is all I remember. I was unconscious twelve hours after that. I think this bus was making at least 50 or 55 miles an hour. The speed of the taxicab in which I was riding was twenty-five or thirty-miles an hour.' We were going up hill. The collision occurred about 12 :30. ... I thought the bus was about ten feet from the car in which I was riding at the time I saw it approach. The highway north of the point of the collision is a grade. There is a curve at the bottom of the hill. At the point of the collision the road was straight. The occupants of the ear I was in are all dead now. ... At the time of the collision the Greyhound bus was on the left-hand side going north. We were on the right-hand side going south.” The taxicab caught on fire and the driver and another were burned to death. The defendants in their brief say: “Nothing else appearing, we realize that this testimony is some evidence of negligence on the part of the defendants, but we think that something else does appear.” This is the contradictory evidence on the part of the defendants. It is a matter long settled in this jurisdiction that the evidence is for the jury to determine. The competency, admissibility, and sufficiency of the evidence is a matter for the court to determine. The credibility, probative force, and weight is a matter for the jury. In Smith v. Coach Line, 191 N. C., 589 (591), Brogden, J., speaking for the Court, says: “In Shell v. Roseman, 155 N. C., 90, this Court has *134 held that conflicting statements of a witness in regard to or concerning a material or vital fact does not warrant a withdrawal of the case from the jury. It affects only the credibility of the witness, and therefore, where inconsistent and conflicting statements are made by a witness or a party, the judge has no power to determine which is correct. This function belongs exclusively to the jury. To the same effect is Christman v. Hilliard, 167 N. C., p. 5, where plaintiff testified on direct examination that he could not state whether the land in controversy was embraced in the deed or not. Thereafter, on cross-examination, he testified that the land was embraced in the deed. The trial judge thereupon nonsuited the plaintiff, and under the principles of law heretofore established by the Court, the nonsuit was held to be error,” citing authorities. The defendants contend that the court below instructed the jury that speed in excess of 45 miles an hour on a highway was negligence per se, when the act says that it is only prima facie evidence of negligence. N. C. Code, 1935 (Michie), sec. 2621(46), Public Laws of 1935, chap. 311, sec. 4(c); Exum v. Baumrind, 210 N. C., 650. On appeal to this Court by defendants in their “assignments of error” this charge is not complained of, and therefore “will be deemed to be abandoned.” 200 N. O., Rule 19(3) : “All exceptions relied on shall be grouped and separately numbered immediately before or after the signature to the case on appeal. Exceptions not thus set out will be deemed to be abandoned,” etc. We think the court below fully complied with the law by reading the statutes applicable to the facts in the case, viz.: N. C. Code, 1935 (Michie) sections 2621(45); 2621(46); 2621(51); 2621(53); the last mostly applicable to the facts in this case being as follows: “Drivers of vehicles, proceeding in the opposite directions shall pass each other to the right, each giving to the other at least one-half of the main traveled portion of the roadway as nearly as possible. (1927, chap. 148, sec. 11.) When the driver of one of the automobiles is not observing the rule of this section, as the automobiles approach each other, the other may assume that before the automobiles meet, the driver of the approaching automobile will turn to his right, so that the two automobiles may pass each other in safety.” Shirley v. Ayers, 201 N. C., 51, 53. See, also, James v. Carolina Coach Co., 207 N. C., 742. If defendants wanted a more elaborate charge, they should have requested same by proper prayer for instructions. It is contended by the defendants that the court erred in instructing the jury with reference to the mortality table. The clause complained of is as follows: “In other words, gentlemen, under the statute, a normal ordinary man of the age of Luther H. Hancock would have continued to *135 live, without'accident, for thirty-six years.” But the full charge is as follows: “We have in the law books of this State a statute and in that statute is a table which we call the table of mortality. This table, gentlemen, is based upon the experience of the large insurance companies, the life insurance companies. They will go back for years and years and take all of the people who have held policies and they will ascertain what the age of each one of those persons was, and how long they lived. And then they will make a calculation upon these facts as to what is the probable length of life of a man of any given age. The statute to which I have just referred, gentlemen, puts the expectancy of Luther H. Hancock at thirty-six years. In other words, gentlemen, under the statute a normal, ordinary man of the age of Luther H. Hancock would have continued to live, without accident, for 36 years. “You have the right to consider that statute, gentlemen, in making up your verdict, but you are not bound by it. You have the right to consider not only the statute, but the habits, the character of the man who died. The plaintiff contends, gentlemen, that you ought to find as a fact that he was a strong, healthy young man, that he was a man of good habits, that he was at that time making around $25.00 per week, or something over $100.00 per month,” etc. In Taylor v. Construction Co., 193 N. C., 775 (779), Brogden, J., speaking for the Court, said: “In the language of Hoke, J., in Sledge v. Lumber Co., 140 N. C., 459: ‘The error here consists in making the mortuary tables conclusive as to the plaintiff’s expectancy, whereas, by the very language of the statute, they are only evidential to be considered with all other testimony relevant to the issue.’ Speight v. R. R., 161 N. C., 80; Odom v. Lumber Co., 173 N. C., 134.” Hubbard v. R. R., 203 N. C., 675 (683); Trust Co. v. Greyhound Lines, 210 N. C., 293. N. C. Code, 1935 (Michie, sec. 1790), is as follows: “Mortuary tables as evidence: Whenever it is necessary to establish the expectancy of continued life of any person from any period of such person’s life, whether he be living at the time or not, the table hereto appended shall be received in all courts and by all persons having power to determine litigation, as evidence, with other evidence as to the health, constitution, and habits of such person, of such expectancy represented by the figures in the columns headed by the words, ‘completed age’ and ‘expectation,’ respectively,” etc. We think that taking the charge as a whole, the court below merely explained the statute, that the jury could consider the statute but are not bound by it. We think the statute was complied with. The court below charged the jury, in part, as follows: “As a basis on which to enable you gentlemen to make this estimate, it is competent for *136 the plaintiff to show, and for you to consider, the age of the dead man, Luther H. Hancock. It is competent for you to consider his prospects of life, his habits, his character, his industry, and skill, the means he had for making money, the business in which he was employed, the end of it all, gentlemen, being to enable you to fix upon the net income which might be reasonably expected, if death had not ensued, and thus arrive at the pecuniary worth of the deceased to his family.” The defendants contend that this was error. In Kesler v. Smith, 66 N. C., 154 (159), Beade, J., lays down the rule as follows: “It was competent to inquire into his age, his strength, his health, his skill and industry, his habits, and his character, the end of all being to get at his pecuniary worth to his family — how much net income might be reasonably expected.” In that case a new trial was granted on the ground that evidence was admitted to prove the number in the family of deceased. This was held error, as the necessities of the family and not the value of the life would constitute the rule. In Hicks v. Love, 201 N. C., 773 (776-7), is the following: “The appellant excepted to evidence offered by the plaintiff that the deceased provided for his family, that he had a comfortable home, a 200-acre farm, and a plenty for his family to eat and wear. “In determining the pecuniary advantage to be derived from the continuance of a human life, it is competent for the jury in an action for wrongful death under C. S., 160, to consider evidence as to the age, habits, industry, skill, means, and business of the deceased. Burton v. R. R., 82 N. C., 505; Carter v. R. R., 139 N. C., 499; Carpenter v. Power Co., 191 N. C., 130. “A part of this evidence has reference to the industry of the deceased and to the business in which he was engaged, and is clearly within the scope of the cases just cited; and we see no convincing reason for holding that the result of his toil as manifested in providing for the support of his family should not be considered as evidence of his constant attention to business. Certainly the admission of the evidence is not adequate cause for a new trial. 17 C. J., 1356, sec. 244(3). We are referred by the appellant to Kesler v. Smith, 66 N. C., 154; but a careful perusal of the case will show that the evidence held to be incompetent was, in the first place, proof of the number in the family of the deceased at the time of his death, the proposed argument being that the number in the family ought to affect the damages; and, in the next place, proof that the deceased 'was often engaged in fighting’ and 'was often indicted,’ which was offered in answer to the plaintiff’s evidence that the deceased 'furnished supplies to his family and was seen carrying them provisions.’ The case, therefore, is not in conflict with the conclusion above stated.” Hines v. Foundation Co., 196 N. C., 322 (323-4). *137 Further, the court below charged the jury: “It will be your duty, gentlemen, in arriving at a verdict upon this, or any other issue, to rid yourselves of any prejudices, if you possibly have any, to rid yourselves of any sympathy which you may possibly have. It is not a question of sympathy. It is just a plain, practical question, and you should give a reasonable and fair verdict upon all of the issues, according to the evidence in this case, gentlemen.” Further, we find that the court below said in regard to damage: “The defendant in this case contends, gentlemen, that an income of $25.00 per week in the city of Washington, that there would have been no net income. The defendant contends that you gentlemen ought to know as a matter of common knowledge and common sense that a person can hardly live in Washington City for $25.00 a week, and that in this case that there would have been no net income, and that the damage in this case can only be nominal. . . . That there would have been no net income, or, if any, that it would have been very small, taking into consideration the amount of his gross income.” Taking the charge as a whole, we see no ground for a new trial. The many exceptions and assignments of error made by the defendants as to the expression of opinion by the court below, the admission and exclusion of evidence, and as to the measure of damages are without merit and not prejudicial. The defendants contend that the court below erred in failing to review the evidence and declare the law arising therefrom, and impinged O. S., 564. We cannot so hold. Taking the charge as a whole, the able and learned judge in the court below reviewed the evidence, gave the contentions fairly, and charged the law applicable to the facts. We can see no prejudicial or reversible error on the record. The matter was mainly one of fact for the jury to decide. Under the evidence they could have decided either way, but rendered verdict for the plaintiff. In law, we find No error.