{ "id": 8551112, "name": "RAY WOMBLE, Administrator of RUBY WILBORN COTTON, Deceased, v. JOHN BBUCE MORTON", "name_abbreviation": "Womble v. Morton", "decision_date": "1968-08-14", "docket_number": "No. 68SC85", "first_page": "84", "last_page": "90", "citations": [ { "type": "official", "cite": "2 N.C. App. 84" } ], "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": "84 S.E. 2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8605816 ], "opinion_index": 0, "case_paths": [ "/nc/241/0190-01" ] }, { "cite": "28 S.E. 2d 556", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "223 N.C. 792", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617758 ], "opinion_index": 0, "case_paths": [ "/nc/223/0792-01" ] }, { "cite": "144 S.E. 2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "265 N.C. 452", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575677 ], "opinion_index": 0, "case_paths": [ "/nc/265/0452-01" ] }, { "cite": "61 S.E. 2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "232 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610308 ], "opinion_index": 0, "case_paths": [ "/nc/232/0570-01" ] }, { "cite": "32 S.E. 2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "224 N.C. 696", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612724 ], "opinion_index": 0, "case_paths": [ "/nc/224/0696-01" ] }, { "cite": "46 S.E. 2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627945 ], "opinion_index": 0, "case_paths": [ "/nc/228/0651-01" ] } ], "analysis": { "cardinality": 647, "char_count": 16706, "ocr_confidence": 0.549, "pagerank": { "raw": 2.381223083690421e-07, "percentile": 0.7968391207363827 }, "sha256": "2d404569d81c922ab13c77d4c4cd21902f8700492765c08e60c0453bbe33a78a", "simhash": "1:b6676bc2e8dacd9d", "word_count": 2931 }, "last_updated": "2023-07-14T19:15:57.624547+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BROCK and ParKer, JJ., concur." ], "parties": [ "RAY WOMBLE, Administrator of RUBY WILBORN COTTON, Deceased, v. JOHN BBUCE MORTON" ], "opinions": [ { "text": "Mallard, C.J.\nIn the record on appeal the defendant appellant has fifty exceptions and forty assignments of error he brings forward and states in his brief that there are only two questions involved which he states in the following manner:\n\u201c(1) Did the trial Court err in failing to allow defendant\u2019s motion for nonsuit either because:\n(a) There was no evidence that defendant was negligent?; or\n(b) Plaintiff\u2019s intestate was contributorily negligent as a matter of law?\n(2) If not, is defendant entitled to a new trial for error in the charge?\u201d\nFailuRE to Nonsuit\nThe evidence disclosed that on 25 October 1965 plaintiff\u2019s intestate, Ruby Wilbom Cotton, was in good health, worked regularly at a store in Lillington, and was 52 or 53 years of age. She and her husband lived on Highway #27 West of Lillington. Their home was located on the north side of the highway which at that point extended generally East and West. A driveway extended from the highway to their home. The highway was straight for three or four-tenths of. a mile West of the Cotton home. It was a paved road, twenty feet wide, with shoulders about five feet wide, and with a maximum speed limit of 55 miles per hour posted in that area.\nOn 25 October 1965 at about 6:45 or 7:00 a.m. John Smith was traveling West on Highway #27 and saw Mr. and Mrs. Cotton on the south shoulder of the road across the highway from their home. Both of them appeared to be looking for something. As John Smith proceeded West on the highway, he met a pickup truck. Smith testified:\n\u201cAfter I passed him, I don\u2019t know how long it had been after I passed him, but I looked at my rear view mirror and I saw the smoke started up. In other words, it appeared to be from the tires when he went into a skid. I was about halfway between Charlie\u2019s house and Mr. Neese\u2019s residence. I would say I looked in my mirror maybe a minute or two minutes after I passed them. As to how far behind me at the time I saw it in the mirror, well, he was away, I would say halfway between where I was at and Mr. Charlie\u2019s house. The smoke that I saw coming from the tires was thick. In other words, when the smoke went to coming off the tires, then he went into a skid and that was it; I couldn\u2019t see any more because the smoke was so thick. I was not able to judge the speed of the vehicle at the time I saw it.\u201d\nCharlie Cotton, the husband of plaintiff\u2019s intestate, testified in substance, except where quoted, that the night before this occurrence his wife had left her pocketbook on the trunk of the car. He had taken the car to the garage, and the pocketbook fell off when he drove out in the road. The next morning he and his wife went out there to look for the pocketbook. Mr. Cotton was on the south side of the road. He testified:\n\u201cI did not see the truck that was being driven by the defendant coming until I heard the tires start squealing. When I heard the tires start squealing, I turned my head and glanced at my wife and she was about halfway between the yellow line and the shoulder of the road on the left side of the road, that is the north side of the road. That was in the westbound lane.\nAs to whether I saw the truck when I heard it, I glanced first at my wife when I turned, I looked at her. Then I turned off and saw the truck coming down the road skidding. The truck skidded straight for a good distance, then it commenced varying to the left and skid across the yellow line, the front wheels went over on the shoulder of the road about thirty feet from where it hit her at. Then it slid right sideways and hit the dirt right straight towards her.\nThe right rear fender of the truck struck my wife. After I heard the skidding, I saw the truck until it struck my wife. I was looking right straight at my wife when she was struck. At the time she was struck, she was about 16 inches from the edge of the hard surface on the north side of the road when facing the house. The front wheels of the truck were up in my driveway and the back wheels of the truck were about 12 inches from the edge of the hard surface.\u201d\nMr. Cotton, after stating that he had an opinion satisfactory to himself as to the speed of the truck while it was skidding, replied, \u201cMy opinion was, he was going, he was doing better than fifty miles per hour.\u201d The skid marks extended approximately two hundred feet. At the beginning there were two skid marks and this \u201cwent to sideways, then there was four marks.\u201d The four marks extended about sixty feet. When the right rear fender of the truck struck his wife, \u201cit took her off the ground and she went into a spin\u201d for twenty or twenty-five feet, fell to the ground, and slid into the ditch. She didn\u2019t move any after that. She was dead.\nThe defendant offered no evidence.\nWe conclude that the evidence is sufficient to withstand defendant\u2019s motion for nonsuit and to require submission to the jury of the issues of negligence, contributory negligence, and damages.\nCHARGE OF THE COURT\nDefendant contends that the court committed error in the recapitulation of the evidence in stating that the witness Cotton \u201ctestified that in his opinion when he saw the truck of the defendant up the road, skidding, that it was going faster than fifty-five miles per hour,\u201d when in fact the witness stated that \u201che was doing better than fifty miles per hour.\u201d The court, in its charge, correctly instructed the jury:\n\u201cI only state the substance of the evidence for the purpose of enabling me to apply and explain the law. You are the judges of what the evidence was and you will go by your recollection of it. If your recollection of the evidence differs from mine or that of counsel for either side, you will disregard our recollection and be guided by your own. The law makes you the judges of what the evidence was and of the weight and credibility of each part of it and you are to determine from the evidence what the facts are and then applying the law as the court explains it to you, render your verdict accordingly.\u201d\nWhen the court\u2019s statement of the evidence in condensed form does not correctly reflect the testimony of the witnesses in any particular respect, it is the duty of counsel to call attention thereto and request a correction. Steelman v. Benfield, 228 N.C. 651, 46 S.E. 2d 829. It does not appear that this misstatement of the evidence was called to the attention of the court at any time during the trial. The failure to do so in this case is a waiver of any right to have it considered on appeal. Ward v. R. R., 224 N.C. 696, 32 S.E. 2d 221; State v. Lambe, 232 N.C. 570, 61 S.E. 2d 608; State v. Cornelius, 265 N.C. 452, 144 S.E. 2d 203.\nDefendant contends that the court committed error in charging the jury, as follows:\n\u201cIn the first place, the law imposed upon the defendant the duty not to operate his motor vehicle upon the highway at a greater rate of speed than fifty-five miles per hour.\u201d\nThis contention is without merit when the following circumstances indicative of speed are considered. The witness Smith testified that the defendant\u2019s vehicle was obscured by smoke coming from its tires. The witness Cotton testified that the defendant\u2019s vehicle skidded approximately two hundred feet and that for about sixty feet of that distance it was skidding sideways. The witness Cotton also testified that in his opinion the defendant\u2019s vehicle was going at a speed of over fifty miles an hour when he saw it after he heard it and after it was skidding. We are of the opinion that these circumstances taken in connection with other evidence relating to speed is sufficient for submission to the jury on the question of speed in excess of fifty-five miles per hour.\nThe defendant contends, but cites no authority except G.S. 1-180 in support thereof, that the court expressed an opinion and committed error in the use of the following language in its charge in connection with the statement of the evidence:\n\u201cIn this case, the plaintiff has offered evidence in substance tending to show,\u201d and\n\u201cThe plaintiff offered evidence tending further to show,\u201d and\n\u201cPlaintiff has offered evidence tending further to show.\u201d \u2022\nDefendant contends that the court failed to explain what was meant by the term \u201cthe evidence tended to show\u201d and failed to explain that what the evidence did show was solely the province of the jury. This contention is without merit. The court adequately charged that the jury were the judges of what the evidence was and of its weight and credibility. The use of the terms \u201chas offered evidence in substance tending to show\u201d and \u201coffered evidence tending further to show\u201d is not an expression of opinion in violation of G.S. 1-180. Thompson v. Davis, 223 N.C. 792, 28 S.E. 2d 556.\nDefendant contends that the court failed to state the evidence necessary to explain the application of the law thereto and also contends in several assignments of error that the court failed to adequately charge the jury with respect to the second issue relating to contributory negligence.\nThe defendant asserts that the court failed to inform the jury that the failure of plaintiff\u2019s intestate to yield the right of way to him in the following portion of the charge would be \u201cevidence\u201d of contributory negligence:\n\u201c(S)o under the uncontr\u00e1dicted evidence in the case, it was the duty of the plaintiff\u2019s intestate to yield the right of way to the defendant\u2019s approaching vehicle; however, under the law, if she failed to do that, that would not per se or in itself be negligence, but should be taken into consideration, together with all of the other facts and circumstances appearing in the case, in determining whether she was guilty of negligence or not.\u201d (Emphasis Added.)\nAlthough the court did not use the words \u201cit should be taken into consideration as evidence,\u201d and while we do not approve of the omission thereof, we are of the opinion that the failure to use the words \u201cas evidence\u201d was not prejudicial in this case, as a pedestrian\u2019s failure to yield the right of way is not contributory negligence per se, but only evidence thereof for consideration with other facts and circumstances. Moore v. Bezalla, 241 N.C. 190, 84 S.E. 2d 817.\nThe charge when read as a whole contains an adequate summary of all the necessary evidence on all the issues. The law with respect to contributory negligence was properly stated and \u2022 applied to the evidence.\nDefendant' contends that the court committed error by giving in substance particular instructions requested by the plaintiff\u2019s attorney and then informing the jurors that such had been done at his request. However, after giving the requested instructions, the court also instructed the jury with respect thereto, as follows:\n\u201cI charge you, members of the jury, that the circumstances under which the instructions which I have just given you, should not lead you to believe that there should be any more importance attached to that instruction than the others which I have given you. . . .\n(B)ut you should not place any emphasis upon it by reason of the circumstances under which it is given; it is simply a part of the charge that the court is giving you, and that is not to be singled out as having any more importance than any other part of the charge and you will, in arriving at your verdict, remember and consider the other parts of the charge relating upon this matter, as well as others.\u201d\nWe do not approve of the trial court informing the jurors that particular instructions are given at the request of a party. However, in view of the charge as \u2022 a whole and particularly the further instructions given by the court with respect thereto, we are of the opinion that it was not prejudicial error in this case.\nThere are a number of other assignments of error, some of them to the charge of the court. We have carefully examined each one of them that has been properly brought forward in appellant\u2019s brief. None of them point to a cause for disturbing the verdict.\nIn the trial we find\nNo error.\nBROCK and ParKer, JJ., concur.", "type": "majority", "author": "Mallard, C.J." } ], "attorneys": [ "Morgan & Jones by Robert H. Jones for plaintiff appellee.", "Young, Moore & Henderson by J. C. Moore for defendant appellant." ], "corrections": "", "head_matter": "RAY WOMBLE, Administrator of RUBY WILBORN COTTON, Deceased, v. JOHN BBUCE MORTON\nNo. 68SC85\n(Filed 14 August 1968)\n1. Automobiles \u00a7\u00a7 51, 88; Death \u00a7 7\u2014 wrongful death action \u2014 negligence, contributory negligence, damages \u2014 sufficiency of evidence\nIn an action for wrongful death, evidence tending to show that decedent and her husband were looking for decedent\u2019s poeketbook along the road in front of their home, that while decedent\u2019s husband was on\u2019 the south side of the road and decedent was in the westbound lane, defendant\u2019s truck approached them in the eastbound lane, skidded into the westbound lane and struck decedent, that defendant\u2019s truck was going more than 50 miles per hour after it started skidding, that it skidded for 200 feet, 60 of which were sideways, with thick smoke coming from its tires, that the speed limit was 55 miles per hour, that prior to death decedent was 52 or 53 years old, in good health, and worked regularly in a store, is held sufficient to require submission to the jury of the issues of negligence, contributory negligence, and damages.\n2. Trial \u00a7 33\u2014 misstatement of evidence in charge \u2014 duty to call court\u2019s attention thereto\nWhen the court\u2019s statement of the evidence does not correctly reflect the testimony of a witness in any particular respect, it is the duty of counsel to call attention thereto and request a correction.\n3. Appeal and Error \u00a7 31\u2014 misstatement of evidence in charge \u2014 failure to object \u2014 waiver of question on appeal\nIn an action for wrongful death, failure to call to the court\u2019s attention during the trial a misstatement in the court\u2019s recapitulation of the evidence as to the speed that a witness had testified defendant\u2019s vehicle was traveling is a waiver of the right to have the misstatement considered on appeal.\n4. Automobiles \u00a7 51\u2014 negligence \u2014 excessive speed \u2014 sufficiency of evidence\nIn an action for wrongful death, an instruction submitting the issue of defendant\u2019s negligence in operating his motor vehicle on the highway at a greater rate of speed than 55 miles per hour is held supported by evidence that defendant\u2019s vehicle skidded more than 200 feet and that for 60 feet of that distance it skidded sideways, that thick smoke came from its tires, and that it was going 50 miles per hour after it had started skidding.\n5. Tidal \u00a7\u00a7 33, 35\u2014 instructions \u2014 use of term \u201cevidence tending to show\u201d\nThe court\u2019s use in the charge of the terms \u201chas offered evidence in substance tending to show\u201d and \u201coffered evidence tending further to show\u201d is not an expression of opinion in violation of G.S. 1-180.\n6. Automobiles \u00a7\u00a7 40, 83, 90\u2014 contributory negligence of pedestrian \u2014 failure to yield right of way \u2014 instructions\nIn an action for the wrongful death of a pedestrian, an instruction that the failure of plaintiff\u2019s intestate to yield the right of way to defendant\u2019s vehicle \u201cshould be taken into consideration, together with ail of the other facts and circumstances\u201d upon the question of the pedestrian\u2019s negligence, while disapproved for failure of the court to instruct that it should be taken into consideration \u201cas evidence,\u201d will not be held prejudicial error since a pedestrian\u2019s failure to yield the right of way is not contributory negligence per se, but is only evidence thereof to be considered with the other evidence.\n7. Trial \u00a7\u00a7 32, 38\u2014 jury informed that instructions given at party\u2019s request\nAction of the court in informing the jury that particular instructions were given at the request of plaintiff\u2019s attorney, although disapproved, will not be held prejudicial error where the court further instructed the jury that they should attach no more importance to such instructions than to any other part of the charge.\nAppeal by defendant from Bone, E.J., 11 December 1967 Civil Session of Superior Court of HaeNett County.\nPlaintiff, administrator of the estate of Ruby Wilborn Cotton, instituted this action for the recovery of damages for the wrongful death of plaintiff\u2019s intestate allegedly caused by the actionable negligence of the defendant, John Bruce Morton, in the operation of his automobile on 25 October 1965.\nThe pleadings raise the following issues which the judge submitted and the jury answered as herein indicated:\n\"FiRST: Was plaintiff\u2019s intestate killed by the negligence of the defendant, as alleged in the Complaint?\nAnswer: Yes\nSecoNd: If so, did plaintiff\u2019s intestate by her own negligence contribute to her death?\nAnswer: No\nThied : What damages, if any, is plaintiff entitled to recover of defendant?\nAnswer: $8,000.00\u201d\nFrom the judgment in accordance with the verdict, the defendant appealed.\nMorgan & Jones by Robert H. Jones for plaintiff appellee.\nYoung, Moore & Henderson by J. C. Moore for defendant appellant." }, "file_name": "0084-01", "first_page_order": 104, "last_page_order": 110 }