{
  "id": 8547120,
  "name": "MAUDE L. HUFFINES v. TROY FREEMAN WESTMORELAND and MARY WESTMORELAND",
  "name_abbreviation": "Huffines v. Westmoreland",
  "decision_date": "1969-09-17",
  "docket_number": "No. 6919SC441",
  "first_page": "142",
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  "last_updated": "2023-07-14T21:07:50.917320+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "BROCK and VaughN, JJ., concur."
    ],
    "parties": [
      "MAUDE L. HUFFINES v. TROY FREEMAN WESTMORELAND and MARY WESTMORELAND"
    ],
    "opinions": [
      {
        "text": "Beitt, J.\nPlaintiff assigns as error the striking by the trial judge of certain testimony given by plaintiff when she was adversely examined by defendants\u2019 counsel prior to the trial. Plaintiff offered the adverse examination in evidence, but before allowing it to be introduced, the trial judge, on defendants\u2019 motion, ordered certain portions stricken.\nSeveral of the exceptions under this assignment relate to testimony of plaintiff about her husband who died from injuries sustained in the collision. Plaintiff\u2019s exception No. 1 relates to an answer given by plaintiff to a question asked by defendants\u2019 counsel. His inquiry was directed to certain injuries allegedly received by plaintiff and medical treatments pertaining thereto. Defendants\u2019 counsel asked plaintiff if a certain doctor examined her; she answered, \u201cHe looked in my eye, and at my hand, [and I was more worried about my husband than I was about me, right at the time being.]\u201d That part of plaintiff\u2019s answer included in brackets was stricken by the trial judge, and properly so. It was not responsive to the question and was not relevant to the issues, therefore, motion to strike out the objectionable part was properly allowed. Gibson v. Whitton, 239 N.C. 11, 79 S.E. 2d 196.\nPlaintiff\u2019s exceptions Nos. 2, 3, 4 and 5 relate to testimony which plaintiff attempted to provide showing th\u00e1t her husband was injured in the collision and later died from the injuries received. Plaintiff contends the evidence was proper to explain why her husband did not testify as a witness at the trial. Defendants contend that evidence of the husband\u2019s injuries and death was not relevant to the issues in this case and, if admitted, would tend to evoke sympathy from the jury for plaintiff to the prejudice of defendants.\nIn Pearce v. Barham, 267 N.C. 707, 149 S.E. 2d 22, in an opinion written by Higgins, J., we find the following:\n\u201cThree issues were raised by the pleadings: (1) Did the plaintiff suffer injury and damage as a result of the defendant\u2019s negligence? (2) Did the plaintiff, by her own negligence, contribute to her injury? (3) What damage, if any, is the plaintiff entitled to recover? Only evidence which had bearing on these issues and tended to aid the jury in finding the proper answers to them should have been admitted at the trial. Rules of evidence furnish the guidelines by which the presiding judge shall determine what shall be admitted to the jury for its consideration in finding the answers to the issues. Gurganus v. Trust Co., 246 N.C. 655, 100 S.E. 2d 81; DeBruhl v. Highway Commission, 245 N.C. 139, 95 S.E. 2d 553.\nThe law recognizes that evidence, when of slight value, may be excluded because the sum total of its effect is likely to be harmful. Stansbury states the rule: 'Even relevant evidence may, however, be subject to exclusion where its probative force is comparatively weak and the likelihood of its playing upon the passions and prejudices of the jury is great.\u2019 N. C. Evidence, 2d Ed., \u00a7 80, p. 175. * * *\u201d\nWe hold that the testimony covered by exceptions 2, 3, 4 and 5 was properly stricken. We fail to find anywhere in the testimony where plaintiff attempted to explain her husband\u2019s absence from the trial with the simple statement that he had died between the time of the collision and the date of the trial.\nPlaintiff\u2019s exceptions Nos. 6, 6A and 6B relate to the striking of certain questions asked plaintiff and answers given by her on cross-examination by her counsel during the course of her adverse examination as follows:\n\u201cQ. In other words, you were knocked unconscious in this collision. Is that right?\nA. Yes, that\u2019s right. EXCEPTION NO. 6\nQ. What you are saying about thei various things, about whether the light was green, where you were, and knowing about the collision, and so forth, you just have no recollection of it?\nMR. GAVIN: I am going to object to the form of that question. EXCEPTION NO. 6A * * *\nQ. Then, are you saying, when you are saying that you don\u2019t remember these things, in your testimony today, that you don\u2019t have any recollection of it?\nA. No sir, it was just like a dream to me. EXCEPTION NO. 6B\u201d\nConceding, arguendo, that the court erred in striking said questions and answers, the error was harmless for the reason that plaintiff had testified on direct examination by defendants\u2019 counsel that she was knocked unconscious, that she did not remember if the trafile light was green, that the best way she could describe what happened at the intersection was to say that it was \u201cjust like a dream.\u201d The burden is on appellant not only to show error but that the alleged error was prejudicial. Burgess v. Construction Co., 264 N.C. 82, 140 S.E. 2d 766.\nThe assignments of error relating to the adverse examination of plaintiff are overruled.\nIn her assignment of error No. 7, plaintiff contends that the trial court erred in excluding plaintiff\u2019s exhibit 10 as evidence. The exhibit is a purported map or plat of the intersection of Pritchard Street with North Fayetteville Street and is drawn to scale on graph paper. It shows the front of one car headed toward Pritchard Street approximately three feet east of the line separating the northbound and southbound traffic lanes; it shows another car headed north in the easternmost lane for northbound traffic approximately 180 feet south of the first car. Plaintiff\u2019s witness Voncannon testified that at the time of the collision he was standing on the west side of North Fayetteville Street about 200 feet south of the intersection; that he saw the collision; that he made exhibit 10 and that it correctly represented the intersection where the collision occurred; that he could not say exactly where plaintiff\u2019s car was at the time he first saw the Westmoreland car but he \u201cthinks\u201d it (the Huffines car) was across the center line. Exhibit 10 definitely represents the front of plaintiff's car as being some three feet across the center line at the time the defendants\u2019 car was some 180 feet away. We hold that the witness did not identify the representations of exhibit 10 with sufficient accuracy to render it admissible. Stansbury, N.C. Evidence 2d, \u00a7 34, pp. 64, 66. The assignment of error is overruled.\nPlaintiff\u2019s assignment of error No. 22 purports to relate to exceptions 22 and 23. The record discloses that these exceptions were not taken at the trial, therefore, they will not be considered here. Rule 21, Rules of Practice in the Court of Appeals of North Carolina.\nPlaintiff noted numerous exceptions to portions of the court\u2019s charge to the jury as well as failure of the court to charge the jury on certain points. We do not deem it necessary to discuss each of the exceptions relating to the charge. Suffice to say, we have carefully reviewed the charge, with particular reference to the points raised by the exceptions, and conclude that the charge, considered \u25a0contextually as a whole, was free from prejudicial error. The assignments of error relating to the charge are overruled.\nWe have carefully considered all assignments of error brought forward and discussed in plaintiff\u2019s brief, but finding them without merit, they are all overruled.\nNo error.\nBROCK and VaughN, JJ., concur.",
        "type": "majority",
        "author": "Beitt, J."
      }
    ],
    "attorneys": [
      "John Randolph Ingram for plaintiff appellant.",
      "Coltrane & Gavin by W. E. Gavin for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "MAUDE L. HUFFINES v. TROY FREEMAN WESTMORELAND and MARY WESTMORELAND\nNo. 6919SC441\n(Filed 17 September 1969)\n1. Automobiles \u00a7 45\u2014 accident case \u2014 evidence \u2014 irrelevant and unresponsive answer\nIn action by femme plaintiff to recover for personal injuries allegedly resulting from an automobile accident, trial court properly struck as irrelevant and unresponsive plaintiff\u2019s answer, in reply to defendant\u2019s inquiry as to ber injuries and tbe treatment thereof, that sbe bad been more worried about ber injured husband at tbe time of tbe treatment.\n2. Automobiles \u00a7 45\u2014 accident case \u2014 evidence of death of plaintiff\u2019s husband \u2014 competency\nIn action by femme plaintiff to recover for personal injuries resulting from an automobile accident, trial court properly struck plaintiff\u2019s testimony that ber husband was injured in tbe collision and later died, there being no merit in plaintiff\u2019s contention that tbe evidence was admissible to explain why ber husband did not testify as a witness at tbe trial.\nS. Automobiles \u00a7 45\u2014 accident case \u2014 striking of evidence \u2014 harmless error\nDuring the course of the adverse examination of plaintiff, action of tbe trial court in striking plaintiff\u2019s testimony on cross-examination by ber counsel that she was knocked unconscious by the collision, that she did not remember if the traffic light was green, and that her best description of what occurred at the intersection was that it was \u201cjust like a dream,\u201d held harmless error where plaintiff had testified to these same matters on direct examination.\n4. Appeal and Error \u00a7 46\u2014 prejudicial error \u2014 burden of proof\nThe burden is on appellant not only to show error but that the alleged error was prejudicial.\n5. Automobiles \u00a7 45; Evidence \u00a7 25\u2014 accident case \u2014 evidence \u2014 map of accident scene\nPurported map of an automobile accident scene is rendered inadmissible where witness who drew the map did not identify its representations with sufficient accuracy on the trial.\nAppeal by plaintiff from Crissman, J., at the 3 February 1969 Civil Session of RaNdolph Superior Court.\nThis is a civil action to recover for personal injuries and property damage allegedly sustained by plaintiff in a collision between an automobile owned and operated by her and an automobile owned by the feme defendant and operated by the male defendant.\nPlaintiff\u2019s complaint alleged, and her evidence tended to show, the following: In the early afternoon of 6 November 1967, plaintiff was driving south on North Fayetteville Street in the City of Ashe-boro, said street having four traffic lanes \u2014 two for southbound traffic and two for northbound traffic. Pritchard Street intersected North Fayetteville Street from the east and formed a \u201cT\u201d intersection. Plaintiff desired to turn left on Pritchard Street and as she was in the process of making her turn she was driven into by the male defendant who was driving a station wagon north on North Fayetteville Street. Further facts pertinent to this appeal appear in the opinion.\nIssues of negligence, contributory negligence and damage were submitted to the jury who answered the first two issues yes. From judgment predicated on the verdict in favor of defendants, plaintiff appealed.\nJohn Randolph Ingram for plaintiff appellant.\nColtrane & Gavin by W. E. Gavin for defendant appellees."
  },
  "file_name": "0142-01",
  "first_page_order": 166,
  "last_page_order": 170
}
