Gore v. Williams

VAUGHN, Judge. Defendants present several assignments of error pertaining to defendant Williams’ third party claim. We will address those errors for which we conclude defendants are entitled to a new trial. In Assignment of Error No. 16, defendants argue that the court erred in excluding testimony of Faison as to the speed of the Williams’ vehicle. We agree. In North Carolina, any person of ordinary intelligence who has had a reasonable opportunity to observe a moving automobile is competent to testify as to that automobile’s rate of speed. Jones v. Horton, 264 N.C. 549, 142 S.E. 2d 351 (1965). Any inconsistency between the witness’ opinion and other evidence in [224] troduced at trial affects only the weight of the testimony, not its admissibility. State v. McQueen, 9 N.C. App. 248, 250, 175 S.E. 2d 789, 791 (1970). In the present case, Faison testified that he had observed the Williams’ vehicle for at least one-half mile. He was prepared to further testify that, in his opinion, the vehicle was travelling at a rate of 65 to 70 m.p.h. Such evidence was relevant to the issue of whether Williams was contributorily negligent. We, therefore, conclude that the court committed prejudicial error in excluding Faison's opinion as to speed. See Loomis v. Torrence, 259 N.C. 381, 130 S.E. 2d 540 (1963). In Assignments of Error Nos. 15 and 18, defendants argue that the court erred in not allowing examination of Luther Gore concerning statements in his verified complaint and in not allowing the introduction into evidence of the complaint itself. We agree. A witness may always be impeached by proof that on another occasion he made a statement inconsistent with his statement at trial. State v. McKeithan, 293 N.C. 722, 730, 239 S.E. 2d 254 (1977). The prior statement may have been made orally or in a writing. 1 Stansbury, N.C. Evidence § 46 (Brandis rev. 1973). At the trial of this action, Gore testified that, in his opinion, the car in which he was a passenger was travelling at a rate of 55 to 57 m.p.h. He further stated that Williams braked as soon as the two men saw the tractor-trailer. In his verified complaint, however, Gore had alleged the following: “That at the time and place of said accident the defendant, Romie Henry Williams, was negligent in the following respects: B. He failed to keep his vehicle under proper control; C. He operated his motor vehicle at a speed greater than was reasonable and prudent under the circumstances; D. He failed to reduce his speed upon approaching a special traffic hazard of a vehicle being parked upon the public highway immediately in front of his lane of travel.” [225] When counsel for defendant Faison attempted to examine Gore concerning the allegations in his original complaint, the court sustained opposing counsel’s objection. We hold that it was prejudicial error for the court to exclude Gore’s testimony concerning statements in his complaint. See Piper v. Ashburn, 243 N.C. 51, 89 S.E. 2d 762 (1955). The prior inconsistent statements were not sought as substantive evidence but as evidence tending to show the witness’ lack of credibility. Moreover, they addressed one of the primary issues at trial: whether defendant Faison was the sole proximate cause of the injuries of Gore and Williams. The court also committed prejudicial error when it denied admission into evidence of portions of the original complaint. Parts of a pleading are competent as admissions against interest and are always admissible against the party who made them. Chavis v. Insurance Co., 251 N.C. 849, 852, 112 S.E. 2d 574, 576 (1960); Morris v. Bogue Corporation, 194 N.C. 279, 139 S.E. 433 (1927); Floyd v. Thomas, 108 N.C. 93, 12 S.E. 740 (1891). The errors discussed herein entitle defendants to a new trial. Defendants’ other assignments of error need not be expressly considered since they may not occur at the second trial. Reversed. Judges CLARK and Hill concur.