{ "id": 8549352, "name": "GLADYS W. DUKE v. EDWARD S. MEISKY AND WELLS FARGO ARMORED SERVICE CORPORATION", "name_abbreviation": "Duke v. Meisky", "decision_date": "1971-09-15", "docket_number": "No. 7118SC575", "first_page": "329", "last_page": "335", "citations": [ { "type": "official", "cite": "12 N.C. App. 329" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "2 A.L.R. 3d 155", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": 0 }, { "cite": "175 S.E. 2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "9 N.C. App. 30", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547703 ], "opinion_index": 0, "case_paths": [ "/nc-app/9/0030-01" ] }, { "cite": "170 S.E. 2d 151", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "6 N.C. App. 221", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547548 ], "opinion_index": 0, "case_paths": [ "/nc-app/6/0221-01" ] }, { "cite": "83 S.E. 2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "240 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609216 ], "opinion_index": 0, "case_paths": [ "/nc/240/0680-01" ] }, { "cite": "113 S.E. 2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "252 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622539 ], "opinion_index": 0, "case_paths": [ "/nc/252/0412-01" ] } ], "analysis": { "cardinality": 607, "char_count": 13269, "ocr_confidence": 0.54, "pagerank": { "raw": 1.1602744300922189e-07, "percentile": 0.5839182129923405 }, "sha256": "c2607c6eeacd0e0b79be39197e9e7b239a635d0d8b2e6de23f33aafd8530f035", "simhash": "1:7f0fb1d70cee5457", "word_count": 2173 }, "last_updated": "2023-07-14T18:50:27.087613+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Britt and Morris concur." ], "parties": [ "GLADYS W. DUKE v. EDWARD S. MEISKY AND WELLS FARGO ARMORED SERVICE CORPORATION" ], "opinions": [ { "text": "PARKER, Judge.\nIn the record on appeal appellants have grouped three exceptions under the heading \u201cAssignment of Error No. 1,\u201d twenty-six exceptions under the heading \u201cAssignment of Error No. 2,\u201d and nine exceptions under the heading \u201cAssignment of Error No. 3.\u201d While all of these relate to rulings admitting or excluding evidence, in the case of each grouping several distinct and different questions of law are presented. This method of grouping exceptions does not conform with the Rules of Practice in this Court. Rule 19(c) provides that all exceptions relied on shall be grouped and separately numbered. In interpreting its cognate rule, our Supreme Court has held that \u201c[t]his grouping of the exceptions assigned as error (sometimes for brevity also called \u2018assignments of error\u2019) should bring together all of the exceptions which present a single question of law.\u201d Conrad v. Conrad, 252 N.C. 412, 113 S.E. 2d 912. \u201cAn assignment of error must present a single question of law for consideration by the court.\u201d Dobias v. White, 240 N.C. 680, 83 S.E. 2d 785. The purpose of this requirement is to bring into focus the several distinct questions of law which the appellant wishes the appellate court to consider. That purpose is defeated when, as here, appellant jumbles together in the same assignment of error a number of exceptions which undertake to raise quite distinct and different questions of law. It is not enough that all exceptions grouped under a single assignment may present questions in the field of the law of evidence; that field is far too broad to serve as an adequate focusing device for present purposes, as anyone who has glanced at Wigmore can attest.\nWhile appellants\u2019 failure to comply with the Rules has made our task more difficult, we have nevertheless carefully considered all of the separate questions raised by the exceptions which appellants have lumped together under each of the headings \u201cAssignment of Error No. 1,\u201d \u201cAssignment of Error No. 2,\u201d and \u201cAssignment of Error No. 3,\u201d and find no prejudicial error. Plaintiff testified that for several years prior to the accident she had had a small lump on her chest and that a few weeks \u201cor maybe a month\u201d after being struck \u201cit started paining me terrifically because it was bruised black,\u201d and that \u201cit stayed like that until sometime in December and it started growing like wildfire.\u201d Plaintiff\u2019s physician, Dr. Lyday, testified from an examination which he made of the plaintiff within two weeks prior to the trial that in such examination he found on plaintiff\u2019s breast a \u201clarge, bulging tumor mass,\u201d \u201cthe size at least of a pear,\u201d which he diagnosed as cancerous. In response to a hypothetical question, Dr. Lyday testified that in his opinion there was a probability that the blows which plaintiff received' in the accident \u201ccould cause a growth to enlarge and spread.\u201d We find no error in admitting this testimony. Defendants\u2019 counsel had stipulated the doctor was an expert physician specializing in the field of general surgery. The hypothetical question called for the doctor\u2019s opinion as to whether the growth on plaintiff\u2019s body \u201ccould or might to a reasonable degree of medical probability have been activated by the blows and bruises\u201d received by plaintiff in the accident. The hypothetical question was in a form which has been approved by our Supreme Court, Stans-bury, N. C. Evidence 2d, \u00a7 137, and there was evidence from which the jury could find the facts to be as stated in the question. On cross-examination by defendants\u2019 counsel, the doctor testified that during the two months he had attended plaintiff while she was in the hospital immediately following the accident, he had not himself observed any bruises on her body in the area of the lump on her chest. This would not, however, preclude the jury from finding that such bruises in fact existed, since plaintiff had so testified. There was, therefore, sufficient evidence to support the jury\u2019s finding the facts to be as stated in the hypothetical question. In overruling defendants\u2019 objection to the hypothetical question and their motion to strike the doctor\u2019s answer, we find no error. We have also carefully considered and find no prejudicial error in the other rulings on evidence as to which appellants complain and which are the subject of the numerous exceptions grouped in their first three assignments of error.\nIn Assignment of Error No. 4 appellants contend that \u201c[t]he Court erred in not granting defendants\u2019 motions for involuntary dismissal of this action at the close of plaintiff\u2019s evidence and at the close of all the evidence.\u201d Where, as here, a case is tried before a jury, the appropriate motion by which a defendant tests the sufficiency of plaintiff\u2019s evidence to permit a recovery is the motion for a directed verdict under Rule 50(a) of the Rules of Civil Procedure. The motion for involuntary dismissal, made under Rule 41(b), performs a similar function in an action tried by the court without a jury. Effective 1 July 1970 our Supreme Court adopted, pursuant to G.S. 7A-34, \u201cGeneral Rules of Practice for the Superior and District Courts Supplemental to the Rules of Civil Procedure.\u201d Rule 6 of these Rules contains the following:\n\u201cAll motions, written or oral, shall state the rule number or numbers under which the movant is proceeding.\u201d\nIt does not appear from the record before us that defendants complied with Rule 6. It does appear that, at least when their motion was first made at the close of plaintiff\u2019s evidence, they misnamed their motion as a motion to dismiss rather than as a motion for a directed verdict. In phrasing their Assignment of Error No. 4, appellants have continued the misnomer. While such imprecision is not to be encouraged, it would appear that the trial judge considered defendants\u2019 motions as having been correctly made under Rule 50(a), and we shall do likewise.\nThere was no error in overruling defendants\u2019 motions. Contrary to appellants\u2019 contentions, there was ample evidence from which the jury could find that plaintiff was within the marked crosswalk when defendants\u2019 truck first hit her. She testified that she walked on the sidewalk on Market Street to the corner, that the sign said \u201cWalk,\u201d and that she walked \u201cstraight on down.\u201d After the accident her body was found lying two or three feet in front of defendants\u2019 truck at a point north of the crosswalk, but the rear of the truck was still partially in the crosswalk and one of plaintiff\u2019s shoes was found exactly on the northernmost crosswalk line underneath the rear of the truck. The investigating officer testified that defendant driver stated he didn\u2019t see the plaintiff and didn\u2019t know whether she was in the crosswalk or not. While both the plaintiff and the truck were proceeding under favorable signal lights, this Court has held that under similar circumstances the right of the pedestrian to proceed is superior to that of the turning motorist. Wagoner v. Butcher, 6 N.C. App. 221, 170 S.E. 2d 151; Pompey v. Hyder, 9 N.C. App. 30, 175 S.E. 2d 319; See: Annotation, 2 A.L.R. 3d 155, at page 182. Viewing all the evidence in the light most favorable to the plaintiff, there was ample evidence from which the jury could find that defendant driver was negligent in failing to keep a proper lookout and in failing to yield the right-of-way.\nThe issue of contributory negligence was properly submitted to the jury. Certainly nothing in the evidence would compel the conclusion that plaintiff was contributorily negligent as a matter of law.\nWe have carefully examined all of appellants\u2019 remaining exceptions and in the trial and judgment appealed from find\nNo error.\nJudges Britt and Morris concur.", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "Jordan, Wright, Nichols, Caffrey & Hill by Luke Wright; and Smith & Patterson by Norman B. Smith for plaintiff ap-pellee.", "Sapp & Sapp by Armistead W. Sapp, Jr., for defendant appellants." ], "corrections": "", "head_matter": "GLADYS W. DUKE v. EDWARD S. MEISKY AND WELLS FARGO ARMORED SERVICE CORPORATION\nNo. 7118SC575\n(Filed 15 September 1971)\n1. Appeal and Error \u00a7 24\u2014 assignment presenting different questions of law\nThe grouping under a single assignment of error of a number of exceptions which raise distinct and different questions of law relating to the admission or exclusion of evidence does not conform with Court of Appeals Rule 19(c).\n2. Evidence \u00a7 50\u2014 medical opinion testimony\nThe trial court did not err in permitting an expert in general surgery to testify, in response to a hypothetical question, that in his opinion there was a probability that the blows which plaintiff received in the accident in question \u201ccould cause a growth to enlarge and spread.\u201d\n3. Rules of Civil Procedure \u00a7\u00a7 41, 50\u2014 motion for directed verdict \u2014 motion to dismiss\nIn a jury trial, the appropriate motion by which a defendant tests the sufficiency of plaintiff\u2019s evidence to permit a recovery is the motion for a directed verdict under G.S. 1A-1, Rule 50(a); the motion for dismissal under G.S. 1A-1, Rule 41(b) performs a similar function in a nonjury trial.\n4. Rules of Civil Procedure \u00a7 7\u2014 statement of rule number in motions\nAll motions must state the rule number or numbers under which the movant is proceeding. Rule 6, General Rules of Practice for the Superior and District Courts Supplemental to the Rules of Civil Procedure.\n5. Automobiles \u00a7 40\u2014 pedestrian\u2019s right-of-way\nWhere a pedestrian and a turning motorist are both proceeding at an intersection under favorable signal lights, the right of the pedestrian to proceed is superior to that of the turning motorist.\n6. Automobiles \u00a7 62\u2014 striking pedestrian at intersection \u2014 sufficiency of evidence of negligence\nIn this action for injuries received when plaintiff pedestrian was struck by defendants\u2019 left-turning vehicle at an intersection while both plaintiff and defendant driver were proceeding under favorable signal lights, defendants\u2019 motion for directed verdict was properly denied where there was ample evidence from which the jury could find that plaintiff was within a marked crosswalk when struck, and that defendant driver failed to keep a proper lookout and to yield the right-of-way, and the evidence does not disclose that plaintiff was contributorily negligent as a matter of law.\nAppeal by defendants from Kivett, Judge, 12 April 1971 Civil Session of Superior Court held in Guilford County, Greensboro Division.\nCivil action to recover damages for personal injuries sustained when plaintiff, a pedestrian, was struck by an armored truck owned by the corporate defendant and operated by its employee, the individual defendant, while acting in the course and scope of his employment. The accident occurred shortly after 9:00 a.m. on 24 September 1968 at the intersection of East Market and Davie Streets in the City of Greensboro. At that point East Market Street runs east-west, and Davie Street north-south. Vehicular traffic at the intersection was controlled by electric signal lights. A marked crosswalk for pedestrians extended across Davie Street from the northwest to the northeast corner of the intersection. There was an electric \u201cWalk\u201d and \u201cDon\u2019t Walk\u201d signal at the northeast corner facing pedestrians walking eastward in the crosswalk. All signal lights were functioning properly.\nDefendants\u2019 truck, proceeding eastward on East Market Street, entered the intersection facing a favorable green light and turned left across the crosswalk in order to proceed north on Davie Street. In so doing it struck plaintiff, who was walking eastward across Davie Street while facing a favorable \u201cWalk\u201d sign. Plaintiff alleged that she was walking within the marked crosswalk and was struck when she had reached a point approximately midway between the northwest and northeast corners of the intersection. She alleged that defendant driver was negligent in failing to maintain a proper lookout, in failing to yield the right-of-way to plaintiff in violation of G.S. 20-155(c) and of Section 12-31 of the Greensboro Code of Ordinances, in failing to exercise due care to avoid striking the plaintiff and to give warning by sounding the horn in violation of G.S. 20-174 (e), and in other respects. Defendants denied negligence on the part of defendant driver, denied that plaintiff was walking within the marked crosswalk, alleged that plaintiff was struck at a point approximately ten feet north of the north line of the marked crosswalk, and pleaded that plaintiff was contributorily negligent in jaywalking directly into the path of defendants\u2019 truck, in failing to keep a proper lookout, and in failing to yield the right-of-way in violation of G.S. 20-174(a) and (c).\nAt the close of plaintiff\u2019s evidence, defendants moved to dismiss on the grounds that plaintiff had failed to establish negligence on the part of defendants and that plaintiff\u2019s own testimony established her contributory negligence as a matter of law. The motion was overruled. Defendants did not offer any evidence, renewed their motion to dismiss, and asked for a directed verdict in their favor. Defendants\u2019 motion was overruled, and the case was submitted to the jury which answered issues of negligence and contributory negligence in plaintiff\u2019s favor and awarded plaintiff damages in the amount of $53,000.00. From judgment on the verdict, defendants appealed.\nJordan, Wright, Nichols, Caffrey & Hill by Luke Wright; and Smith & Patterson by Norman B. Smith for plaintiff ap-pellee.\nSapp & Sapp by Armistead W. Sapp, Jr., for defendant appellants." }, "file_name": "0329-01", "first_page_order": 355, "last_page_order": 361 }