{
  "id": 8554166,
  "name": "JACK HERRING v. SHEPARD SCOTT",
  "name_abbreviation": "Herring v. Scott",
  "decision_date": "1974-03-06",
  "docket_number": "No. 7416SC37",
  "first_page": "78",
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    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
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  "last_updated": "2023-07-14T21:32:29.924632+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges Hedrick and Baley concur."
    ],
    "parties": [
      "JACK HERRING v. SHEPARD SCOTT"
    ],
    "opinions": [
      {
        "text": "CAMPBELL, Judge.\nThe defendant assigns as error the failure of the trial court to grant a mistrial rather than just striking the speed testimony of the plaintiff\u2019s brother. Any error of the trial court was cured by the striking of the evidence and by the judge\u2019s instruction that the jury should disregard that testimony. Wands v. Cauble, 270 N.C. 311, 154 S.E. 2d 425 (1967) ; Smith v. Perdue, 258 N.C. 686, 129 S.E. 2d 293 (1963). See also Stansbury\u2019s North Carolina Evidence (Brandis Revision, 1973) \u00a7 28.\nThe defendant also assigns as error the failure of the trial court to strike the testimony of Mrs. Pittman as incompetent because she had insufficient opportunity to observe the car and to accurately estimate its speed. We hold that in this case that issue is really one of what weight should be given Mrs. Pittman\u2019s testimony and that that question is for the jury. Jones v. Bagwell, 207 N.C. 378, 177 S.E. 170 (1934) ; Ray v. Electric Membership Corporation, 252 N.C. 380, 113 S.E. 2d 806 (1960); Harrison v. Lewis, 15 N.C. App. 26, 189 S.E. 2d 662 (1972).\nThe defendant also assigns as error the submission by the trial court of the issue of last clear chance to the jury in any case where contributory negligence has not been admitted by the plaintiff. However, on similar facts it has been held no error to submit the issue of last clear chance to the jury. Harrison v. Lewis, supra; Wanner v. Alsup, 265 N.C. 308, 144 S.E. 2d 18 (1965). We would note that the jury did not even reach the issue of last clear chance and that the question defendant raises is largely academic.\nLastly, the defendant assigns as error the failure of the trial court to grant his motion for directed verdict. Even if no consideration be given to plaintiff\u2019s evidence as to excessive speed, the evidence was ample to allow the jury to infer that defendant failed to keep a proper lookout. Taken in the light most favorable to the plaintiff with all contradictions, conflicts and inconsistencies resolved in plaintiff\u2019s favor, the evidence was sufficient to withstand a motion for directed verdict.\nWe have considered defendant\u2019s other assignments of error and find them without merit. We find\nNo error.\nJudges Hedrick and Baley concur.",
        "type": "majority",
        "author": "CAMPBELL, Judge."
      }
    ],
    "attorneys": [
      "L. J. Britt & Son by L. J. Britt; and McLean, Stacy, Henry & McLean by Dickson McLean, Jr., for plaintiff appellee.",
      "Johnson, Hedgpeth, Biggs & Campbell by John Wishart Campbell for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "JACK HERRING v. SHEPARD SCOTT\nNo. 7416SC37\n(Filed 6 March 1974)\n1. Automobiles \u00a7 46\u2014 striking opinion testimony as to speed \u2014 instructions to jury\nAny error in the admission of a witness\u2019s opinion testimony as to the speed of defendant\u2019s car was cured when the court struck the testimony and instructed the jury not to consider it.\n2. Automobiles \u00a7 46\u2014 opinion testimony as to speed \u2014 opportunity to observe car\nIn a pedestrian\u2019s action to recover for personal injuries received when he was struck by defendant\u2019s car, a witness had sufficient opportunity to observe defendant\u2019s car to permit her to give an opinion as to its speed where she testified that she heard the collision and observed defendant\u2019s car as it braked down over a distance of 60 to 60 feet.\n3. Automobiles \u00a7 89\u2014 last clear chance \u2014 no admission of contributory negligence\nThe trial court did not err in the submission of an issue as to last clear chance in a case in which contributory negligence had not been admitted by the plaintiff.\n4. Automobiles \u00a7 62\u2014 striking pedestrian\nPlaintiff\u2019s evidence was sufficient to support a jury finding that defendant was negligent in failing to keep a proper lookout when he struck plaintiff who was standing at the edge of the road under a street light.\nAppeal by defendant from McLelland, Judge, at the 21 May 1973 Session of Robeson Superior Court.\nThis is a civil action instituted to recover for personal injuries sustained by the plaintiff, Jack Herring, a pedestrian, when struck by defendant\u2019s car. The plaintiff\u2019s evidence tended to show that on the night of 20 October 1967 the plaintiff was walking west on Carthage Road at or near its intersection with Albion Street in Lumberton, North Carolina. The plaintiff saw and hailed his brother, Pete Herring, who was walking north on Albion Street. The plaintiff crossed Carthage Road and stood in the edge of the road under a street light at the northeast corner of Carthage Road and Albion Street while talking with his brother. The defendant was proceeding west on Carthage Road when his car struck the plaintiff, knocking the body across Albion Street to a point twenty-five feet west of the northwest corner of Carthage Road.\nMrs. Juanita Pittman, who lives on the corner of Carthage and Albion, and who, upon hearing the collision rushed to the door which was open, saw the plaintiff\u2019s body skidding down the road, and the defendant\u2019s car as it hit the brakes and slid to a halt. Mrs. Pittman and the plaintiff\u2019s brother, neither of whom actually saw the impact, testified that the speed of defendant\u2019s car was approximately 50-55 miles per hour in a 35 mile per hour zone. The plaintiff\u2019s brother testified that he turned and saw the defendant\u2019s car moving for a total of two seconds as it crossed Albion Street. Mrs. Pittman testified that she observed defendant\u2019s car for five to six seconds as it braked down over a distance of 50 to 60 feet. The brother\u2019s testimony as to speed was stricken and the jury instructed to disregard this testimony. There was testimony to the effect that the view back down Carthage Road from Albion Street is unobstructed for approximately 200 yards. The issues submitted to the jury were negligence, contributory negligence, last clear chance, and damages. The jury found that the defendant was negligent, the plaintiff was not contributorily negligent, did not reach the issue of last clear chance, and awarded the plaintiff $10,000 in damages. From said verdict and judgment, the defendant appealed.\nL. J. Britt & Son by L. J. Britt; and McLean, Stacy, Henry & McLean by Dickson McLean, Jr., for plaintiff appellee.\nJohnson, Hedgpeth, Biggs & Campbell by John Wishart Campbell for defendant appellant."
  },
  "file_name": "0078-01",
  "first_page_order": 106,
  "last_page_order": 109
}