Peterson v. Taylor

PARKER, Judge. Appellant’s first assignment of error, based on her exceptions 1 through 8, is directed to rulings of the trial court sustaining defendants’ objections to certain questions asked by plaintiff’s counsel concerning the opinion of two witnesses as to maximum safe speeds and customary speeds and practices for vehicles moving on the parking lot. As to the court’s rulings to which appellant’s exception No. 1 and exceptions Nos. 3 through 8 were taken, the record does not disclose what the witnesses’ answers would have been had they been permitted to testify. The exclusion of testimony cannot be held prejudicial when the record fails to show what the answer of the witness would have been. Gibbs v. Light Co., 268 N.C. 186, 150 S.E. 2d 207. Appellant’s exception No. 2 is directed to the trial court’s sustaining defendants’ objection to a question asked by plaintiff’s counsel of one of plaintiff’s witnesses, who was the police officer who investigated the collision and who had been present on the parking lot at the time of the collision but who did not see it. The officer testified that Larry Dean Taylor, driver of the Mustang, had told him at the time of the accident “that he was coming down the parking lane in a northerly direction at approximately 25 miles per hour.” (Larry Dean Taylor later testified and admitted having made this statement to the officer, but testified that in his opinion he was traveling between 15 and 20 miles per hour as he approached the point where the accident occurred.) Plaintiff then asked this witness whether in his opinion “you could operate your car at 25 miles an hour in safety in a northwardly direction in that lane?” Defendants’ objection to this question was sustained, and the witness answered for the record in the absence of the jury that in his opinion “a reasonable speed would not be in excess of ten miles per hour.” We find no prejudicial error in sustaining defendants’ objection to the question. G.S. 20-141 (a) provides that no person shall drive a vehicle on any parking lot, etc., “at a speed greater than [301] is reasonable and prudent under the conditions then existing.” It was ultimately for the jury, not for the witness1, to determine what speed would have been “reasonable and prudent under the conditions” which existed at the time and place of the collision involved in this case. We note that the recollection of the witness concerning the width of traffic lanes, signs, and other physical characteristics of the parking lot differed in material respects1 from the recollection of other witnesses. From this conflicting testimony the jury was required to determine what conditions existed at the time and place of the collision. Having made such a determination, the jurors were as capable as the witness to make the further determination as to what speed was reasonable and prudent under the circumstances. We find no prejudicial error in the exclusion of the witness’ testimony. Appellant’s second assignment of error relates to the reference to insurance which was made during the course of the trial. This occurred in the following manner: On direct examination plaintiff testified that for many years prior to the accident she had worked continuously for Union Carbide, that after the accident she had been out of work because of her injuries for certain periods, and that she'had lost wages in a total of $1,918.97 during such times. On recross-examination of plaintiff, defendants’ counsel sought to ask her “if she wasn’t paid some money during that time.” Objection to this question was at first sustained, after which the record shows the following occurred: “Court : You want to ask her if the company paid her any money? “Mr. Walker: Yes sir. “Court: Ask her that. . “Q. Mrs. Peterson, during the time you were out did the company pay you some money? “Mr. Henderson: Objection because the question of paying could go to many things. “Court: It isn’t a question of any insurance or anything like that, but if they actually paid her any wages. “Q. Coming from the company, if the company paid you any money. That is what I am asking you. [302] “Court: All right. “A. I have insurance. “Q. I am not asking you what some policy, but did the company supplement whatever you had and pay you some amount yourself? “Mr. Henderson : If the court please, I don’t know what he is driving at. “Court: Members of the jury, you step out to your room a minute.” The record indicates no further reference to insurance made during the course of the trial. From the foregoing it is1 apparent that the mention of insurance became involved at the trial of this case only incidentally and while defendants’ counsel was cross-examining plaintiff on an entirely different subject. He was attempting to ascertain whether plaintiff had received payments from her employer during the periods of her disability. Presumably his purpose was to use any such payments in mitigation of plaintiff’s damages. We need not now decide whether he would have been entitled to do so (see Annotation, 7 A.L.R. 3d 516), since no such payments by plaintiff’s employer were shown. Our Supreme Court has held that a defendant in a personal injury tort action is not entitled to have any damages which plaintiff might otherwise be entitled to recover against him reduced by the fact that plaintiff may have been wholly or partly indemnified by insurance to the procurement of which defendant did not contribute. Young v. R. R., 266 N.C. 458, 146 S.E. 2d 441. In undertaking to assure compliance with this rule, the trial judge in the present case inadvertently made a passing reference to the subject of insurance. In the context of this case, such reference by the trial judge did not in our opinion constitute prejudicial error. It is apparent that the trial judge was attempting to keep out of evidence any testimony concerning insurance. That insurance of any type actually existed came into evidence solely by plaintiff’s own nonresponsive answer. If any prejudice to plaintiff resulted, it was because of her own act. Her counsel made no motion to strike. Under the circumstances, plaintiff should not be entitled to have the verdict and judgment set aside and to subject defendants to a new trial for error, if any existed, which [303] was largely of plaintiff’s own making. Cases finding prejudicial error when the matter of liability insurance has been injected into a personal injury action (Stansbury, N. C. Evidence 2d, § 88) are not applicable, since it is'apparent that the insurance which was briefly referred to in this case was not of that nature. We find no merit in appellant’s second assignment of error. Appellant assigns as error that the court instructed the jury with respect to the doctrine of sudden emergency. In this connection appellant does not contend that the court’s instruction as to the law was incorrect, but does contend that the doctrine did not arise on the evidence and therefore it was error in this case to charge on the doctrine at all. We do not agree. On the record before us it is our opinion that the doctrine did arise and that it was proper for the court to instruct the jury with respect to it. Plaintiff herself alleged, and offered evidence tending to prove, that “[t]he minor defendant failed to turn, stop or otherwise operate the said Ford automobile after he saw the Chevrolet automobile in order to avoid collision, but proceeded onward to collide with the helpless and halted car occupied by plaintiff.” Plaintiff herself testified that “ [t] here was room enough for Mr. Taylor to go around my car if he cut to the left as he approached me on the collision course.” In turn, defendants alleged and offered evidence tending to prove that plaintiff “[cl]rove her automobile directly and immediately into the path of defendant’s on-coming automobile and stopped the same suddenly without warning when she knew or, in the exercise of due care, should have known that, by her actions, the collision between the two vehicles, would be inevitable.” The evidence as to the speed at which the defendant driver was moving prior to the time plaintiff drove her car into the traffic lane in front of him is sharply conflicting. Viewed in the light most favorable to defendants, defendant driver was confronted with a sudden emergency which was not the result of any prior negligent conduct on his part. Viewed in the light most favorable to plaintiff, the situation was otherwise. The conflict was for the jury to resolve. The court’s instruction left them free to do so. In instructing on the doctrine of sudden emergency, the trial court did properly “declare and explain the law arising on the evidence given in the case.” G.S. 1A-1, Rule 51 (a). Appellant’s assignment of error with respect thereto is overruled. [304] Appellant assigns as error the overruling of her motion for a directed verdict on defendant’s counterclaim. In our opinion the evidence was such as to require submission of issues on the counterclaim to the jury. In any event the jury answered the fourth issue, which related to the counterclaim, in appellant’s favor. We have carefully reviewed all of appellant’s remaining assignments of error, and find no prejudicial error. No error. Chief Judge Mallard and Judge Hedrick concur.