{ "id": 8550698, "name": "JOE ALLEN WRIGHT, by and through his Guardian ad Litem, HENRY C. FRENCK, and JOE WRIGHT v. BLUE BIRD CAB COMPANY and JUSTICE A. CREWS", "name_abbreviation": "Wright ex rel. Frenck v. Blue Bird Cab Co.", "decision_date": "1976-12-01", "docket_number": "No. 7621SC474", "first_page": "525", "last_page": "531", "citations": [ { "type": "official", "cite": "31 N.C. App. 525" } ], "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": "158 S.E. 2d 529", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "272 N.C. 352", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572936 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/272/0352-01" ] }, { "cite": "181 S.E. 2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565770 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0085-01" ] }, { "cite": "192 S.E. 2d 836", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565795, 8565766, 8565736, 8565816, 8565850 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0426-03", "/nc/282/0426-02", "/nc/282/0426-01", "/nc/282/0426-04", "/nc/282/0426-05" ] }, { "cite": "192 S.E. 2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "16 N.C. App. 217", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549899 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/16/0217-01" ] }, { "cite": "229 S.E. 2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "31 N.C. App. 312", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549214 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/31/0312-01" ] } ], "analysis": { "cardinality": 628, "char_count": 15216, "ocr_confidence": 0.667, "pagerank": { "raw": 4.8172472706271035e-08, "percentile": 0.30324354817597476 }, "sha256": "3ee9bcddd85a7d643515992a56782d91b4f570c9c71ee7fbbf18fc6d99cf51ca", "simhash": "1:f9b571c506065ef6", "word_count": 2548 }, "last_updated": "2023-07-14T16:36:26.493722+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge Brock and Judge Parker concur." ], "parties": [ "JOE ALLEN WRIGHT, by and through his Guardian ad Litem, HENRY C. FRENCK, and JOE WRIGHT v. BLUE BIRD CAB COMPANY and JUSTICE A. CREWS" ], "opinions": [ { "text": "HEDRICK, Judge.\nBy their first two assignments of error plaintiffs contend the court erred in refusing to admit as against defendant Cab Company defendant Crews\u2019 admissions concerning the circumstances of the accident. By their tenth assignment of error plaintiffs contend the court erred in granting defendant Cab Company\u2019s motion for a directed verdict at the close of plaintiffs\u2019 evidence. Plaintiffs neither alleged nor offered proof of any independent negligent acts on the part of Cab Company. Therefore, Cab Company could only be vicariously liable for the alleged negligent acts of its agent Crews under the doctrine of respondeat superior. Crews\u2019 admissions were admitted in the case against himself, and were considered by the jury in rendering a verdict of whether Crews was negligent or not. The jury verdict absolving Crews of any liability also relieves Cab Company of liability, and renders moot any question of error on the part of the trial court in refusing to admit Crews\u2019 admissions into evidence against Cab Company or in granting Cab Company\u2019s motion for a directed verdict. Bullard v. Bank, 31 N.C. App. 312, 229 S.E. 2d 245 (1976). These assignments of error are not sustained.\nIn his instructions to the jury on the issue of sudden emergency the trial judge stated, \u201c[I]f the defendant was confronted by a sudden emergency caused by the negligence of another in running out in front of him, that he is not held to the wisest choice of conduct, but only to such choice as a person of ordinary prudence similarly situated would have made.\u201d Immediately before the jury began deliberation, the court further charged the jury as follows:\n\u201cNow, ladies and gentlemen of the jury, during the noon recess one of the lawyers called my attention to a statement that I made to you, and I think I probably inadvertently used the wrong word in my charge to you this morning. If you will recall, I charged you that if the defendant was confronted by a sudden emergency created by the negligence of another. Now, I inadvertently used the word \u2018negligence.\u2019 I should have used \u2018acts.\u2019 I should have said this, and this is what I intended to say to you: I charge that if the defendant was confronted by an emergency created by the acts of another in suddenly running out in front of him, that he is not held to the wisest choice of conduct but only to such choice as a person of ordinary prudence similarly situated would have made. But this principle of sudden emergency does not apply to one who by his own negligence has brought about or contributed to the emergency. In other words, ladies and gentlemen, a child under the age of seven in the State of North Carolina cannot be guilty of any negligent acts.\u201d\nBy their third assignment of error plaintiffs contend the court erred in referring to the \u201cnegligence\u201d of the minor plaintiff in its original charge to the jury because the two-year-old plaintiff is legally incapable of negligence. They argue further that the correcting instruction quoted above did not remove the alleged prejudicial effect of the original instruction. We do not agree. At trial no issue of contributory negligence on the part of the minor plaintiff was raised, and we do not see how the trial judge\u2019s inadvertent use of the word \u201cnegligence\u201d with respect to the minor plaintiff's actions could in any way prejudice the plaintiffs, but, in any event, the court\u2019s later clarifying instruction removed any possible prejudice caused by the original instruction. This assignment of error is without merit.\nThe court excluded from evidence the following testimony elicited by plaintiffs from defendant Crews in his deposition.\n\u201c [Q-] Did the child travel in the air sixteen feet?\nA. No, sir. If he had, I believe I\u2019d have seen him.\nQ. He traveled on the ground then? Sliding or rolling\nor\u2014\nA. It may be \u2014 no, sir, I just think \u2014 well he was undoubtedly up off the ground, yes, but \u2014 ?\nQ. In the air then?\nA. I guess he must have been, sir. When I saw him he was laying flat on his face.\u201d\nBy their fourth assignment of error plaintiffs contend that in excluding the foregoing portion of defendant Crews\u2019 deposition the court erred to their prejudice because its ruling prohibited them \u201cfrom proving that this two-year-old child was not merely \u2018tapped\u2019 by the automobile\u2019s impact, but was in fact projected no less than 16 feet from the point of impact, and thereby causing severe brain damage to this minor child.\u201d Since the jury did not reach the issue of damages, we do not perceive any prejudice to plaintiffs in the exclusion of the testimony. Long v. Clutts, 16 N.C. App. 217, 192 S.E. 2d 131 (1972), cert. denied 282 N.C. 426, 192 S.E. 2d 836 (1972). Moreover, an examination of the excluded testimony reveals that the questions called for the witness to speculate as to matters over which he obviously had little if any knowledge. We find no prejudicial error in the court\u2019s exclusion of this testimony.\nBy their fifth assignment of error plaintiffs contend the court erred in not allowing former Officer Cook to testify what the collision report \u201cindicated\u201d with respect to the location of Mrs. Kellogg\u2019s car in the driveway. Assuming that the question objected to by the defendant and excluded by the court was meant to impeach Cook by showing that what he put on the collision report was inconsistent with his testimony at trial, and assuming therefore that the court erred in sustaining defendant\u2019s objection, the alleged error is not subject to review because we are unable to determine if plaintiffs have been prejudiced by the alleged error, since the answer to the question is not included in the record. State v. Fletcher, 279 N.C. 85, 181 S.E. 2d 405 (1971); Stansbury, N. C. Evidence 2d (Brandis Rev.) \u00a7 26.\nPlaintiffs contend the court erred in excluding from evidence the deposition of Mrs. Kellogg. Mrs. Kellogg testified on both direct and cross examination at the trial. When plaintiffs offered Mrs. Kellogg\u2019s deposition into evidence, they conceded it was \u201csomewhat cumulative\u201d to her testimony at trial. We have carefully examined Mrs. Kellogg\u2019s deposition and her testimony at trial, and find them to be substantially identical. It is within the trial judge\u2019s discretion to exclude such repetitious testimony, Reeves v. Hill, 272 N.C. 352, 158 S.E. 2d 529 (1968), and we find no abuse of discretion in the judge\u2019s exclusion of the testimony.\nBy their seventh assignment of error plaintiffs contend the court erred in excluding the minor plaintiff\u2019s hospital records introduced for the purpose of explaining and illustrating the extent of the physical injuries to the minor plaintiff. Obviously since the jury never reached the issue of damages, the exclusion of the testimony is not prejudicial to the plaintiffs. Long v. Clutts, supra. This assignment of error is not sustained.\nThe parties stipulated that the speed limit in the area of Argonne Boulevard was 35 miles per hour at the time of the accident. Defendant Crews testified that he was driving 30 miles per hour just before the minor plaintiff ran out in front of him. Plaintiffs assign as error the court\u2019s exclusion of testimony as to defendant Crews\u2019 knowledge of the posted speed limit on Argonne Boulevard. The court properly excluded the evidence as being irrelevant. This assignment of error has no merit.\nThe plaintiffs\u2019 other assignments of error are formal and raise no additional questions. We hold the plaintiffs had a fair trial free from prejudicial error.\nNo error.\nChief Judge Brock and Judge Parker concur.", "type": "majority", "author": "HEDRICK, Judge." } ], "attorneys": [ "H. Glenn Pettyjohn for plaintiff appellants.", "Womble, Carlyle, Sandridge & Rice by Allan R. Gitter and William C. Raper for defendant appellees." ], "corrections": "", "head_matter": "JOE ALLEN WRIGHT, by and through his Guardian ad Litem, HENRY C. FRENCK, and JOE WRIGHT v. BLUE BIRD CAB COMPANY and JUSTICE A. CREWS\nNo. 7621SC474\n(Filed 1 December 1976)\n1. Automobiles \u00a7 104\u2014 hitting child \u2014 cab company liable under re-spondeat superior only \u2014 exclusion of cab driver\u2019s admissions\nIn an action to recover for personal injuries sustained by minor plaintiff when he was struck by a taxicab operated by individual defendant in the scope of his employment with defendant cab company, the cab company could only be vicariously liable for the alleged negligent acts of the individual defendant under the doctrine of respondeat superior since plaintiffs neither alleged nor offered proof of any independent negligent acts on the part of the cab company; therefore, the jury verdict absolving the individual defendant of any liability also relieved the cab company of liability, and rendered moot any question of error on the part of the trial court in refusing to admit the individual defendant\u2019s admissions concerning the circumstances of the accident into evidence against the cab company or in granting the cab company\u2019s motion for a directed verdict.\n2. Automobiles \u00a7\u00a7 72, 90\u2014 striking child \u2014 instruction on sudden emergency\nIn an action to recover for personal injuries sustained by minor plaintiff when he ran in front of a cab operated by defendant, the trial court\u2019s reference to the negligence of the minor- plaintiff in instructing on sudden emergency did not amount to prejudicial error, since no issue of contributory negligence on the part of the minor plaintiff was raised at trial, and since the court gave a subsequent clarifying instruction concerning sudden emergency.\n3. Automobiles \u00a7 63\u2014 striking child \u2014 evidence of force of impact excluded \u2014 no error\nIn an action to recover for personal injuries sustained by minor plaintiff when he was struck by a taxicab operated by defendant, plaintiffs were not prejudiced by the exclusion of defendant\u2019s testimony as to whether the minor plaintiff was \u201ctapped\u201d by the vehicle or hit with such force as to be projected 16 feet from the point of impact, thereby sustaining severe brain damage, since the jury did not reach the issue of damages.\n4. Appeal and Error \u00a7 49\u2014 assignment of error to exclusion of evidence \u2014 excluded evidence not in record\nThe trial court\u2019s alleged error in refusing to allow a police officer to testify as to the contents of an accident report is not subject to review, since the excluded testimony was not included in the record.\n5. Appeal and Error \u00a7 49\u2014 deposition as cumulative evidence \u2014 exclusion proper\nThe trial court in a personal injury action did not err in excluding the deposition of a witness who testified on both direct and cross-examination at trial, since the deposition and the testimony at trial were substantially identical and the deposition was therefore cumulative to the testimony.\n6. Automobiles \u00a7 63\u2014 striking child \u2014 issue of damages not reached \u2014 child\u2019s hospital records excluded \u2014 no error\nIn an action to recover for personal injuries sustained by minor plaintiff when she was struck by a taxicab operated by defendant, plaintiffs were not prejudiced by the exclusion of the minor plaintiff\u2019s hospital records introduced for the purpose of explaining and illustrating the extent of the physical injuries to minor plaintiff, since the jury never reached the issue of damages.\nAppeal by plaintiffs from Rousseau, Judge. Judgment entered 5 February 1976 in Superior Court, Foesyth County. Heard in Court of Appeals 18 October 1976.\nThis is a civil action wherein the plaintiffs, Joe Allen Wright, by his guardian ad litem Henry C. Frenck, and Joe Wright, seek to recover from the defendants damages for personal injuries and medical expenses resulting from the alleged negligent operation of a taxicab by the defendant Justice A. Crews, in the scope of his employment with defendant Blue Bird Cab Co. (Cab Company).\nThe evidence offered by the plaintiffs at trial, which is pertinent to this appeal, except where quoted, is summarized as follows :\nPlaintiff read the deposition of defendant Crews into evidence. In his deposition Crews stated the following: On 8 September 1971 at 2:00 p.m. he was driving his cab within the scope of his employment with the defendant Cab Company in Morningside Manor neighborhood of Winston-Salem, N. C. He turned onto Argonne Boulevard about two blocks from the plaintiff's house, and as he approached the house he was driving approximately 30 miles per hour. When he was approximately 60 feet from the driveway to plaintiff\u2019s house, the minor plaintiff ran out into the street from behind a car parked in plaintiff\u2019s driveway. Veering to neither the right nor left, Crews applied his brakes and skidded 3% car lengths before hitting the minor plaintiff with the right front bumper of the cab and thrusting him forward. The cab stopped almost immediately upon hitting the minor plaintiff. The car parked in plaintiff\u2019s driveway was approximately three feet from the curb at the time of the accident.\nJames Parks, a street washer who was in the area on the day of the accident but who did not see the accident, testified that he talked with defendant Crews at the scene of the accident a short time after the accident. Crews told him that \u201che saw a larger child chasing a smaller child from under a carport, under this carport at the Wright home, and he thought they were going to stop or either turn around and go back up in the yard, but they came on out into the street and he ran over one, over the smaller child.\u201d The testimony regarding Crews\u2019 statement to Parks was objected to by defendant Cab Company and excluded as to said defendant by the court. On cross-examination Parks admitted testifying in his deposition that Crews told him the children ran out of the driveway into the street and did not mention at that time that Crews also told him that he saw the children at the carport. Parks explained that he was confused when he testified at deposition.\nKatherine Kellogg, a county health department employee, testified that she was visiting the minor plaintiff\u2019s mother at the time of the accident, and had parked her 1965 Valiant in the driveway. She testified that she did not recall how far up into the driveway she had parked.\nAt the close of plaintiffs\u2019 evidence the court allowed defendant Cab Company\u2019s motion for a directed verdict. Defendant Crews then offered the following evidence:\nDefendant Crews testified that the minor plaintiff ran out from behind the car parked in the driveway and he slammed on brakes immediately upon seeing him, but the cab skidded up to and hit the child, and then immediately stopped.\nKenneth Cook, a police officer with the Winston-Salem Police Department at the time of the accident, testified, while referring to the accident report which he prepared at the scene of the accident, that Crews told him the minor plaintiff had run out in the street from behind the parked vehicle, and he could not have prevented hitting the child. Cook also testified that the rear of the car parked in the driveway was approximately two or three feet from the curb.\nThe parties stipulated that at the time of the accident defendant Crews was on a mission for his employer, defendant Cab Company; that the street was dry and free of defects; that the weather was clear, and that the speed limit was 35 miles per hour.\nThe jury determined that plaintiffs were not injured by the negligence of defendant Crews. Plaintiffs appealed.\nH. Glenn Pettyjohn for plaintiff appellants.\nWomble, Carlyle, Sandridge & Rice by Allan R. Gitter and William C. Raper for defendant appellees." }, "file_name": "0525-01", "first_page_order": 553, "last_page_order": 559 }