Fowler v. Graves

WEBB, Judge. The defendant first assigns error to the denial of his motion for a directed verdict and his motion for judgment notwithstanding the verdict. He argues that all the evidence shows the plaintiff was contributorily negligent as a matter of law. If all the evidence so clearly established the contributory negligence of the plaintiff as one of the proximate causes of the injury, that no other reasonable conclusion is possible, it was error not to allow the defendant’s motion for directed verdict and his motion for judgment notwithstanding the verdict. See Ragland v. Moore, 299 N.C. 360, 261 S.E. 2d 666 (1980). [406] In the light most favorable to the plaintiff, the evidence shows in this case that the plaintiff saw the defendant approaching on the wrong side of the road as the defendant crossed the bridge. The plaintiff assumed the defendant would return to his side of the road after he crossed the bridge. The plaintiff then went to the door on the driver’s side of his automobile which was in the path of the oncoming vehicle. The defendant did not return to his side of the road and the plaintiff was struck. This is evidence from which the jury could find contributory negligence but we do not believe it is the only conclusion they could draw. The jury could find that the plaintiff was doing what a reasonable man would do when he assumed the defendant would return to his side of the road and avoid striking the plaintiff. It was not error to submit the contributory negligence issue to the jury. We do not believe Meadows v. Lawrence, 75 N.C. App. 86, 330 S.E. 2d 47 (1985), aff’d per curiam, 315 N.C. 383, 337 S.E. 2d 851 (1986) and Hughes v. Gragg, 62 N.C. App. 116, 302 S.E. 2d 304 (1983), which are relied on by the defendant are helpful to him. In Hughes, the evidence showed the deceased stepped in front of an oncoming vehicle in such a way that the driver of the vehicle could not avoid striking him. In this case, the plaintiffs evidence showed that the defendant could have avoided striking the plaintiff. In Meadows, all the evidence showed the plaintiff was standing in the path of the defendant’s oncoming vehicle and when the defendant turned toward the middle of the road to avoid the plaintiff, the plaintiff moved into the defendant’s vehicle. The defendant in that case could not have avoided the plaintiff. In his second assignment of error the defendant contends the court erred in refusing to allow Susan Bennett, certified nurse-anesthetist, to testify that on the day of the accident the plaintiffs mother and wife told her that the plaintiff had been drinking all day. The plaintiff had been taken to the hospital and the nurse was treating him when his mother allegedly made this statement. The defendant does not argue that this testimony was admissible under G.S. 8C-1, Rule 803(4) which creates an exception to the hearsay rule for statements made for purposes of medical diagnosis or treatment. He argues that it was offered and was admissible to impeach the testimony of the plaintiffs mother that the plaintiff had nothing to drink on the day of the accident. The plaintiffs mother was not with the plaintiff for several hours [407] before the accident. The jury should have known she did not know whether the plaintiff had been drinking. The defendant elicited testimony from the people who were with the plaintiff that the plaintiff had been drinking beer. The defendant should not have been prejudiced by the exclusion of the testimony of the nurse anesthetist. The defendant next assigns error to the admission of testimony by the highway patrolman based on his observation of the skidmarks that in his opinion the defendant’s vehicle was traveling at a speed of 40 miles per hour. It was held in Tyndall v. Harvey C. Hines Co., 226 N.C. 620, 39 S.E. 2d 828 (1946), that it is error to let a highway patrolman give his opinion as to the speed of a motor vehicle based on his observation of the skidmarks. In that case, the court held that it was prejudicial error because the testimony was material to the issue being tried. The court said excessive speed was a primary act of negligence upon which the plaintiff relied. There was an allegation of excessive speed in the complaint and the court charged on excessive speed. In this case, there was an allegation of excessive speed in the complaint and the court charged on excessive speed as an act of negligence. We believe we are bound to hold under Tyndall v. Harvey C. Hines Co., supra, that it was prejudicial error to admit the testimony of the highway patrolman as to his opinion of the speed of the vehicle. The defendant next assigns error to the court’s refusal to instruct the jury that they must find there was contributory negligence if they determined the plaintiff had violated 6.S. 14-444. We hold the court made a proper charge on this feature of the case. By his fifth assignment of error the defendant argues that the court improperly admitted into evidence the opinion of Dr. Musgrave, the plaintiffs physician, concerning the similarity between the symptoms caused by a head injury and those typically associated with intoxication. He argues that this was error because there is no indication in the record that the witness’s opinion was based upon reasonable scientific certainty or probability rather than upon “mere speculation or possibility.” The record indicates that on cross-examination the witness, qualified as an expert in the field of orthopedic surgery, stated that the plaintiff [408] experienced inability to answer questions normally, restlessness and disorientation after the accident. On redirect examination the witness stated that those symptoms would be caused by a head injury of the type suffered by the plaintiff. He then stated that this type of head injury could cause an individual to have characteristics similar to those of a person who is intoxicated. We believe the fact that the witness was qualified as a medical expert and had earlier stated that a head injury would cause symptoms of the type suffered by the plaintiff establishes a sufficient foundation to take the witness’s opinion out of the realm of mere speculation or possibility. We do not discuss the defendant’s last assignment of error as the question it poses may not arise at a new trial. New trial. Chief Judge Hedrick and Judge Wells concur.