Hobbs v. Queen City Coach Co.

Winborne, J. The record on this appeal discloses that while there are other allegations of negligence in the amended complaint as set out in the foregoing statement of the case, the trial in the Superior Court was had upon the alleged theory that at the time of the collision the bus of the corporate defendant was being driven by the individual defendant, employee and agent of corporate defendants, at a reckless and high rate of speed and out of control, and without keeping a proper lookout for the safety of others traveling upon the highway, thereby permitting the *329 bus to move from its right-band side to its left-hand side of the public highway, and immediately in front of plaintiff’s automobile. ' Hence, the liability of the corporate defendants is grounded solely, and is wholly dependent upon the negligence, if any, of the individual defendant under the doctrine of respondeat superior. Leary v. Land Bank, 215 N. C., 501, 2 S. E. (2d), 570, and numerous other cases. In the light of this setting we have considered the several exceptions brought up by defendahts, and grouped here according to related subjects, and find in them no prejudicial error. I. Exceptions Nos. 4 to 11, both inclusive, and No 38 relate (1) to the admission in evidence of statements of witnesses as to declarations of defendant driver of the bus, made 20 or 30 minutes after the accident, as to what happened at the time of the accident, (2) to the instruction of the court as to the competency of such declarations, and (3) as to allegations of negligence upon which the case was tried. 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 gestee. 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 ease, 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 fact in issue. 10 C. J. S., 1091, Evidence, et seq. TV Wigmore on Evidence, 3d Ed., 1078. In the light of these rules of evidence, declarations of the defendant driver of the bus were admitted not as a part of the res gestee, but as declarations of a party then defendant to the record. They were against his interest, were material and pertinent to the issue of negligence on the theory upon which the case was being tried, and, hence, were competent against him. The court ruled that the declarations were not competent as against corporate defendants and so instructed the jury, and further cautioned and instructed the jury not to consider them as against the corporate defendants. Hence, it will not be held that the corporate defendants are prejudiced by the admission of the testimony. II. Exceptions Nos. 1 to 3, both inclusive, and No. 33 relate (1) to the refusal of the court to strike the allegation in the amended complaint as to one soldier being killed and others injured in the collision, (2) to the admission of evidence to like effect, and (3) to the charge of the court in that respect. It is admitted in a portion of the answer, offered in evidence, that “several soldiers were riding” with plaintiff. And the court instructed-the jury that “with respect to the soldiers and what may *330 have happened to them or may not have happened to them ... is not a matter that concerns you. (The sole purpose that the soldiers, and what may have occurred to them, may be considered by you is with respect to the momentum of the vehicle at the time of the crash — if a crash you shall find there was — and it is admitted there was a crash. There should not be and there must not be any consideration given with respect to the soldiers or what may have happened to them in your verdict other than the consideration in the gathering of the facts for the purpose for which that testimony is allowed and that purpose is as the court has just given you.)” That part in parentheses is covered by exception. The evidence is competent for the purpose for which it was admitted. See Powers v. Sternberg, 213 N. C., 41, 195 S. E., 88, where the “attendant destruction and death,” caused by the force with which the car in question ran into the truck there is said to establish the negligence of the driver of the car as the proximate cause of the injury. Hence, the allegations in the pleading and evidence pursuant thereto were proper for the purpose indicated. III. Exception No. 28 is to refusal of motion for judgment as in case of nonsuit. G. S., 1-183. The record shows that, while the plaintiff was offering evidence and as an accommodation to the witness, Dr. Lenox Baker, a medical expert, was allowed to testify as a witness for defendants. Then plaintiff resumed the offering of evidence. But defendants introduced no other evidence. The record also shows these entries written one under the other after the narrative of the testimony of the last witness for plaintiff: “The plaintiff rests. The defendants rest.” Then this entry follows: “The defendants, and each of them, now rests and each of them collectively and individually moves for judgment as of nonsuit upon the closing of the testimony. The motion is denied and defendants collectively and individually except.” Plaintiff makes the point that defendants having offered evidence were required under the statute, G. S., 1-183, to make a motion for judgment as in case of nonsuit at the close of plaintiff’s evidence, and preserving exception thereto, to renew the motion at close of all the evidence, and having made the motion only at the close of all the evidence — lost their rights under the statute. But be that as it may, we need not here decide, for we are of opinion and hold that timely motions for judgment as of nonsuit would have been unavailing to defendants for that the evidence taken in the light most favorable to plaintiff as we must do in such cases is abundantly sufficient to take the case to the jury on the issue as to negligence of defendants. And we agree with the court below in instructing the jury that there is no sufficient evidence to support an affirmative finding on the issue as to contributory negligence of plaintiff, to which Exception No. 39 relates. The court could not have held as a matter of *331 law, tinder such circumstances, that the plaintiff should be nonsuited for his contributory negligence. There is evidence that the speed of defendants’ bus immediately before the collision was in excess of forty-five miles per hour, and, therefore, prima facie evidence that the speed was not reasonable or prudent, and that it is unlawful — there being no evidence of special hazard existing, G. S., 20-141. There is also evidence that the driver of the bus was not passing the plaintiff’s car on the right, nor giving to it at least one-half of the main traveled portion of the roadway as nearly as possible, in violation of the statute relating to meeting of vehicles. G. S., 20-148. Violation of this latter statute would be negligence per se. Tarrant v. Bottling Co., 221 N. C., 390, 20 S. E. (2d), 565. Moreover, it is a general rule of law, even in the absence of statutory requirements, that the operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. In the exercise of such duty it is incumbent upon the operator of a motor vehicle to keep same under control, and to keep a reasonably careful lookout, so as to avoid collision with persons and vehicles upon the highway. This duty requires that the operator be reasonably vigilant, and that he must anticipate and expect the presence of others. And, as between operators so using the highway, the duty of care is mutual, and each may assume that others on the highway will comply with this obligation. 5 Am. Jur., Automobiles, sections 165, 166, 167. Murray v. R. R., 218 N. C., 392, 11 S. E. (2d), 326; Reeves v. Staley, 220 N. C., 573, 18 S. E. (2d), 239; Tarrant v. Bottling Co., supra. And in the present case there is evidence from which the jury might find that in the operation of the bus there was a failure in the performance of such duties. Furthermore, as to the alleged contributory negligence of plaintiff: “One is not under a duty of anticipating negligence on the part of others, but in the absence of anything which gives or should give notice to the contrary, a person is entitled to assume, and to act upon the assumption that others will exercise care for their own safety.” 45 C. J., 705. Indeed, the operator of a motor vehicle on a public highway may assume that other operators of motor vehicles will use reasonable care and caution commensurate with visible conditions, and that they will approach with their vehicles under reasonable control, and that they will observe and obey the rules of the road. See Shirley v. Ayers, 201 N. C., 51, 158 S. E., 840, and Murray v. R. R., supra, where other authorities are cited. IV. Exceptions Nos. 14 to 20, both inclusive, and 25 to 27, both inclusive, are to the admission of evidence bearing on the issue of damages. The record shows that in the main other evidence to same effect *332 and bearing upon identical matter was admitted without objection. This rendered harmless the admission of the evidence to which exception is taken. Ledford v. Lumber Co., 183 N. C., 614, 112 S. E., 421; Shelton v. R. R., 193 N. C., 670, 139 S. E., 232; Ingle v. Green, 202 N. C., 116, 162 S. E., 476; Gray v. High Point, 203 N. C., 756, 166 S. E., 911, and numerous other cases. Rut in any event, we do not find the evidence, admitted over objection, to be incompetent. It was relevant particularly to element of diminished earning capacity within the measure of damages recoverable as result of personal injury. Ledford v. Lumber Co., supra; Smith v. Thompson, 210 N. C., 672, 188 S. E., 395. V. Exceptions Nos. 21 to 24, both inclusive, relate to admission of evidence as to value of a watch and a suitcase and its contents lost by plaintiff on the occasion in question. However, at the conclusion of all the evidence the court ruled that evidence in these respects is incompetent, and instructed the jury that in no event should recovery be allowed for the loss of these articles. By such action any error in the admission of the evidence is cured. See Gray v. High Point, supra, and cases cited. YI. Exceptions Nos. 29 to 32, both inclusive, 34 to 37, both inclusive, and 40 to 43%, both inclusive, relate (1) to refusal of requests for instruction, (2) to statement of contentions to which no objection was made at the time, (3) to charge of the court (a) in defining actionable negligence, and (b) on certain phases of law bearing on damages recoverable, and (4) to failure to define and explain the term “greater weight of evidence.” Careful consideration of each of these exceptions in the light of the theory of the trial, and of the charge as a whole, fails to disclose prejudicial error. VII. All other exceptions- are either formal or have been abandoned and require no discussion. In the trial we find No error.