{
  "id": 8547324,
  "name": "RAYMOND C. FREEMAN, II v. JOHN GUY HAMILTON, SR.",
  "name_abbreviation": "Freeman v. Hamilton",
  "decision_date": "1972-03-29",
  "docket_number": "No. 7210SC35",
  "first_page": "142",
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  "last_updated": "2023-07-14T22:58:48.650385+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Brock and Hedrick concur."
    ],
    "parties": [
      "RAYMOND C. FREEMAN, II v. JOHN GUY HAMILTON, SR."
    ],
    "opinions": [
      {
        "text": "VAUGHN, Judge.\nThe following is the subject of plaintiff\u2019s first assignment of error. Joan Tiska, a passenger on the motorcycle, was thrown to the pavement. Defendant\u2019s driver, in the course of testifying as to the events immediately preceding and following the collision testified as follows:\n\u201cAfter I looked and saw Mr. Freeman, I saw that somebody was taking care of him, I kneeled back down and I got on my knees. I looked at Joannie and told her she was going to be all right and she looked at me and said \u2018It\u2019s not your fault.\u2019 That\u2019s exactly what she said.\u201d\nPlaintiff\u2019s objection and motion to strike were overruled. We hold that the court\u2019s failure to strike the testimony as to the foregoing spontaneous utterance of the injured passenger did not constitute prejudicial error.\nOn direct examination the driver of defendant\u2019s automobile testified, without objection by plaintiff, that he had never been convicted of anything. On cross-examination of the witness, plaintiff\u2019s counsel asked the following: \u201cIsn\u2019t it a fact that you were, in June of 1970, convicted of an offense on the fourth floor of this Courthouse, growing out of this accident?\u201d Defendant\u2019s objection to the question was sustained and the court\u2019s ruling on the propriety of the question is assigned as error. It is settled that a defendant in a civil action may not be cross-examined regarding his conviction of an offense based on the very acts charged against him in the civil action, unless such conviction is based on a plea of guilty. See Beanblossom v. Thomas, 266 N.C. 181, 146 S.E. 2d 36 and authorities therein cited. The question, as propounded by counsel, called for incompetent testimony. Plaintiff\u2019s counsel, had he elected to do so, could have rephrased his question and deleted any reference to a conviction based on the acts giving rise to the civil action then being tried. Watters v. Parrish, 252 N.C. 787, 115 S.E. 2d 1. This assignment of error is overruled.\nAfter the jury had deliberated approximately three hours, plaintiff\u2019s counsel submitted a written request that the court \u201ccharge the jury that a person having the right of way may assume that persons to whom the right of way applies will respect it until the contrary affirmatively appears.\u201d The court declined to give the requested instruction and this constitutes plaintiff\u2019s third assignment of error. Rule 51(b) of the North Carolina Rules of Civil Procedure provides that requests for special instructions must be submitted to the judge before the judge\u2019s charge to the jury is begun. Plaintiff\u2019s request, therefore, came too late. Moreover, consideration of the entire charge discloses that the judge properly declared and explained the law arising on the evidence. This assignment of error is overruled.\nPlaintiff\u2019s final assignment of error that \u201cthe Court erred in declining to set aside the verdict, for that it clearly appears that it was against the weight of the evidence\u201d is without merit. Both plaintiff and defendant were ably represented at trial and on this appeal. Upon conflicting evidence the jury resolved the issues in a trial which we hold to have been free of prejudicial error.\nNo error.\nJudges Brock and Hedrick concur.",
        "type": "majority",
        "author": "VAUGHN, Judge."
      }
    ],
    "attorneys": [
      "Jacob W. Todd for plaintiff appellant.",
      "Smith, Anderson, Blount and Mitchell by John H. Anderson for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "RAYMOND C. FREEMAN, II v. JOHN GUY HAMILTON, SR.\nNo. 7210SC35\n(Filed 29 March 1972)\n1. Automobiles \u00a7 49\u2014 passenger\u2019s statement at collision scene \u2014 fault\nIn this action to recover for personal injuries sustained in a collision between plaintiff\u2019s motorcycle and defendant\u2019s car, the trial court did not err in permitting defendant\u2019s driver to testify that a motorcycle passenger injured in the accident told him at the collision scene that \u201cIt\u2019s not your fault.\u201d\n2. Automobiles \u00a7 45; Evidence \u00a7 22; Witnesses \u00a7 8\u2014 civil action \u2014 conviction of criminal offense based on same acts\nIn this action to recover damages for personal injuries, the trial court properly refused to allow plaintiff to cross-examine the driver of defendant\u2019s car as to whether he had been convicted of an offense \u201cgrowing out of this accident,\u201d since a defendant in a civil action may not be cross-examined regarding his conviction of an offense based on the very acts charged against him in a civil action unless such conviction is based on a plea of guilty.\n3. Rules of Civil Procedure \u00a7 51\u2014 request for special instructions \u2014 timeliness\nThe trial court did not err in refusing to give the jury special instructions requested in writing by plaintiff after the jury had deliberated for three hours, since such request must be submitted to the judge before the charge is begun. G.S. 1A-1, Rule 51(b).\nAppeal by plaintiff from Bane, Judge, 15 July 1971 Session of Superior Court held in WAKE County.\nAction to recover compensation for injuries arising out of a collision by plaintiff, while operating a motorcycle, with an automobile owned by defendant and operated by defendant\u2019s son. Issues of negligence, contributory negligence and damages were submitted. The jury answered the issues of negligence and contributory negligence in the affirmative. Plaintiff appealed.\nJacob W. Todd for plaintiff appellant.\nSmith, Anderson, Blount and Mitchell by John H. Anderson for defendant appellee."
  },
  "file_name": "0142-01",
  "first_page_order": 168,
  "last_page_order": 170
}