Cardwell v. Ware

MARTIN, Judge. Plaintiff assigns as error the trial court’s refusal to allow one of plaintiff’s witnesses to testify regarding his out-of-court statement to a private investigator one month after the collision. Upon vigorous cross-examination, and contrary to his testimony on direct examination, plaintiff’s witness Gary Myers expressed uncertainty as to whether he had actually seen plaintiff’s turn signal operating just prior to the time of the collision. In an effort to bolster Myers’ earlier testimony, plaintiff’s counsel sought on redirect to elicit the substance of an earlier statement by witness Myers relative to his observation of the turn signals. This testimony, if allowed, would have revealed that Myers told a private investigator one month after the accident that he was “almost positive” he saw plaintiff’s turn signal operating. The trial court sustained defendants’ general objection to this series of questions. While we do not concur with plaintiff’s contention that this evidence was admissible under the rules pertaining to refreshing the memory of a witness, we feel the challenged evidence was competent to corroborate Myers’ testimony on direct examination relative to the turn signal as it tended to show that Myers made a prior statement to the same effect. The admissibility of a witness’s prior consistent statements to corroborate his testimony at trial is well established in the law of this State. State v. McLawhorn, 270 N.C. 622, 155 S.E. 2d 198 (1967); 1 Stansbury’s N.C. Evidence, §§ 49-52 (Brandis Rev. 1973). Indeed, the witness himself is competent to testify to his prior consistent statements. Burnett v. R.R., 120 N.C. 517, 26 S.E. 819 (1897). Accordingly, the trial judge’s exclusion of the subject testimony was error. However, for the reasons set forth below, this error does not present grounds for reversal. In a cross-assignment of error, defendants contend that the trial court erred in denying defendants’ motion for directed verdict at the close of plaintiff’s evidence and at the end of all the [369] evidence in that the evidence, taken in the light most favorable to plaintiff, established plaintiff’s contributory negligence as a matter of law. We must agree. Our courts have consistently held that a driver of any vehicle upon a highway, intending to make a left turn, has a duty to exercise reasonable care to avoid causing injury to a following vehicle by keeping a proper lookout, by giving proper signals of his intention, and by keeping his vehicle under control. Clarke v. Holman, 274 N.C. 425, 163 S.E. 2d 783 (1968); Gasperson v. Rice, 240 N.C. 660, 83 S.E. 2d 665 (1954); Ervin v. Mills Co., 233 N.C. 415, 64 S.E. 2d 431 (1951). Moreover, the giving of appropriate signals does not necessarily relieve the driver of the duty also to make proper observation of the movement of the vehicles approaching from the rear. Ervin v. Mills Co., supra. To the same effect is G.S. 20-154, a safety statute which prescribes in pertinent part that the driver of any vehicle upon a highway “before starting, stopping or turning from a direct line shall first see that such movement can be made in safety. . . .” In the instant case, evidence adduced at trial showed that plaintiff’s motorcycle was equipped with two rear view mirrors through which he had an unobstructed view of the road behind him for a distance of approximately seven hundred (700) feet. Plaintiff stated that he checked both mirrors and did not see any cars behind him as he traveled down Main Street or at anytime before the collision. Yet the undisputed evidence disclosed that the point of impact was the right front fender of the automobile between the headlight and right front wheel. This indicates that defendants’ automobile was practically alongside plaintiff as he started his turn. Plaintiff’s failure to see defendants’ automobile and to make sure that his movement could be made in safety, under the circumstances of this case, amounts to contributory negligence as a matter of law for which the jury verdict must be vacated and a verdict directed as a matter of law in defendants’ favor. The cause is remanded with directions that judgment be entered as a matter of law in accordance with this opinion. Judges Morris and Arnold concur.