DeLaney v. Henderson-Gilmer Co.

OlabicsoN, J. This is a civil action for actionable negligence brought by plaintiff against the defendant. [649] Martha DeLaney, a school girl in the 10th grade, about 14 years of age, on the morning of 26 November, 1924, about 9 o’clock, with the permission of her father, J. L. DeLaney, was driving to school in his Essex car with a companion, Martha Dulin. She had no city license; she had been driving a car about one year to a year and a half, with her father’s permission, around the city. She was coming south down Cecil Street, between 7th and Elizabeth Avenue. Her description of the occurrence is as follows: “When I came to Fifth Street I was traveling between 8 and 10 miles an hour. I was watching the road. I did not see the defendant’s truck until I had gotten almost in the mouth of Fifth Street; it was coming down Fifth Street, going west. Fifth Street runs down grade a good deal after it enters Cecil. I would say the truck was running between 15 and 20 miles an hour. I was on the right side of the street about four feet from the curb. Before I got to the corner I blew the horn four times and when I got there the truck was coming down. It did not stop, but kept on coming and I saw if I stopped he would hit me on the side and knock me down an embankment at the back of the school, so I speeded up to get past the car on the right before it struck me, but it struck me anyway. I was curving to the right. The car swerved to the right on my side and I tried to make the curve with the truck. Fifth Street stops at Cecil. There was a high embankment on the east side of Cecil Street, and you can’t see a car coming down Fifth Street for that embankment. On the far side of Cecil there is a bank dropping about 10 feet from the street. The truck struck me on the front fender and knocked me up on the curbing and I hit the telephone post. It tore up the car in which I was riding, turned it over on the side after it struck the post. The truck struck the left front fender of my car on the side near the front. The car was taken to the motor company. I went to the hospital. His car was coming down Fifth Street and I turned to the left at the intersection.” This testimony was corroborated by Martha Dulin, who was riding in the car with her. The defendant, in its answer, denied negligence and set up the plea of contributory negligence. The defendant introduced no evidence. The issues submitted to the jury were the usual ones in such cases — negligence, contributory negligence and damages. The jury found the defendant negligent, the plaintiff not guilty of contributory negligence, and assessed damages. The first material assignment of error by defendant is to the following : “Q. Do you know whether she (plaintiff’s daughter) is a careful or careless driver ?” This assignment of error must be considered in the light of what had occurred before in the trial on cross-examination of J. L. DeLaney by the defendant to impeach and discredit his testimony and lessen its value before the jury. He was asked certain questions [650] and bis answers were: “I knew that was a violation of tbe law. I am an attorney. I bave been to tbe Legislature, a State Senator. I bave also been recorder pro tern. I bave tried people down there for violating traffic ordinances, as judge, and I bave punished them, and I knew that this was a violation of tbe law to let my daughter drive alone on tbe streets when she was not but 14 years old.” On redirect-examination, tbe testimony complained of was brought out. This testimony was not offered as substantive, but it was in answer to tbe impeachment of tbe witness, DeLaney, for allowing bis daughter under 16’years of age to operate a motor vehicle, with bis knowledge and consent, contrary to tbe traffic law. No request by defendant was prayed to limit its scope. It was collateral to tbe main issue. In fact, tbe evidence of tbe two witnesses as to bow tbe collision occurred was not contradicted by defendant. Tbe decisions cited by defendant are not applicable here, conceding, but not deciding, we do not think it reversible or prejudicial error. Complaint is also made by defendant that tbe court in setting forth tbe contentions of plaintiff gave point to tbe error and this testimony was referred to: “She was young in years, under tbe age limit required by law, yet she knew bow to drive and was an experienced and careful driver.” It does not appear that exception was made at tbe time. It is well established by tbe decisions of this Court that if no objection is made at tbe time it is waived. S. v. Sinodis, 189 N. C., p. 565. It is further contended that tbe court below in tbe charge upon negligence violated tbe prudent man rule and cites this excerpt from tbe charge: “There are a number of definitions as to negligence. Probably as easy and simple a definition as any I can think of at tbe moment is that where a man does a thing be ought not to do or leaves undone a thing be ought to do, which doing or leaving undone brings about injury to another. That is one definition and as far as I know about as simple to apply to this case as any I can think of.” In Lea v. Utilities Co., 175 N. C., at p. 463, tbe Court said: “In order to establish actionable negligence, tbe plaintiff is required to show by tbe greater weight of'the testimony, first, that there has been a failure to exercise proper care in tbe performance of some legal duty which tbe defendant owed tbe plaintiff under tbe circumstances in which they were placed, proper care being that degree of care which a prudent man should use under like circumstances and charged with a like duty; and second, that such negligent breach of duty was tbe proximate cause of tbe injury, a cause that produced tbe result in continuous sequence and without which it could not bave occurred, and one from which any man of ordinary prudence could bave foreseen that such a result was probable under tbe facts as they existed. Ramsbottom v. R. R., 138 N. C., 41.” [651] In Hudson v. R. R., 176 N. C., p. 492, Allen, J., confirming tbe above rule, says: “To wbicb we adhere, with tbe modification contained in Drum v. Miller, 135 N. C., 204, and many other cases, that it is not required that tbe particular injury should be foreseen, and is sufficient if it could be reasonably anticipated that injury or barm might follow tbe wrongful act.” Hall v. Rinehart & Dennis Co., post, 706; Boswell v. Hosiery Mills, 191 N. C., at p. 558; Moore v. Iron Works, 183 N. C., 438. Tbe extract from tbe charge, standing alone, might be subject to some criticism, but tbe court below, in continuity, stating other aspects of tbe law of tbe case, charged: “Tbe law does not require a man to become an insurer or guarantor; what tbe law requires him to do is to exercise reasonable care in tbe operation of bis automobile and due care is tbe better word, and due care means that care which an ordinary prudent person, surrounded and situated as tbe driver was there on that occasion would have exercised. . . '. And if defendant’s driver in tbe operation of bis truck exercised that care wbicb an ordinary prudent person surrounded and situated as be was at tbe time would have exercised, then be would not be guilty of any negligence. But if be failed to exercise such care, then you find that failure was tbe proximate cause of tbe injury to tbe plaintiff’s car, then it would be your duty to answer tbe first issue ‘Yes.’ ” We think these instructions as a whole substantially follow tbe law as laid down by this Court. Tbe charge must be taken as a whole and not disconnectedly. Hanes v. Utilities Co., 191 N. C., at p. 20; Dulin v. Henderson-Gilmer Co., ante, 638. On tbe question of contributory negligence: In regard to Martha DeLaney driving tbe car under 16 years of age, contrary to tbe law, tbe court charged: “As I said before, violation of tbe law is itself prima facie negligence, per se negligence, but it is not that negligence wbicb constitutes liability unless it becomes a proximate cause of the injury. So, in this case, tbe court charges you if you find Miss DeLaney was under sixteen years of age and that she was driving tbe car, that was in violation of tbe law, and if you find that that violation was a proximate cause of tbe injury to tbe plaintiff’s automobile, it would be your duty to answer tbe issue ‘Yes.’ ” This is sustained by abundant authority: Shepard v. R. R., 169 N. C., 239; Paul v. R. R., 170 N. C., 231; Zageir v. Express Co., 171 N. C., 692; Taylor v. Stewart, 172 N. C., 203; Hinton v. R. R., 172 N. C., 587; Graham v. Charlotte, 186 N. C., 649. In Construction Co. v. R. R., 185 N. C., at p. 45, it is held: “When a trespass committed upon personal property results in an injury less than tbe destruction or deprivation of tbe property, or in an action [652] for a negligent injury to real property, tbe measure of damages is tbe reduced market value of tbe property proximately caused by tbe negligent act, and tbe rule generally adopted is to allow tbe plaintiff tbe difference between tbe market value of tbe property immediately before tbe injury occurred and tbe like value immediately after tbe injury is complete,” citing authorities. Tbe correct and safe rule is tbe difference between the ’ reasonable or fair market value of tbe automobile before and after tbe injury or damage. Ordinarily tbe value of tbe property damaged is to be determined as of tbe time and place of its damage or injury. Proof of its value witbin a reasonable time under tbe circumstances of tbe particular case, before and after tbe injury is competent. Newsom v. Cothrane, 185 N. C., p. 161; 8 R. C. L., 487-8-9. . If tbe questions complained of were objectionable, like tbe following: “Immediately after tbe wreck, wbat, in' your opinion, was tbat car worth ?” tbe witness cured it- by bis answer: “Tbe market^ value bad depreciated at least 50% in my opinion.” Tbe court also cured it in tbe charge: “Yet, in tbe market, tbe value of it in tbe market has been depreciated and tbat is tbe test, not wbat it is worth to Mr. DeLaney, not bow long it would last, not bow much strength it bad, but wbat tbat automobile in tbe open market would have sold for immediately before this collision, put on tbe market and sold by a person under no obligations to sell and bought by a person under no obligations to buy; tbat is wbat is meant by its market value.” Tbe definition of market value is practically tbat laid down in R. R. v. Armfield, 167 N. C., 464. Ve think tbe court met fully tbe requirements of tbe law in tbe charge on damages. On tbe entire record we can find no prejudicial or reversible error. Tbe facts of tbe collision were testified to by two witnesses, found to be credible by tbe jury, and defendant introduced no evidence to tbe contrary. No error.