{ "id": 8522048, "name": "JEWEL MEDFORD, Guardian ad Litem for SHERRI RENAE HEATHERLY v. WENDELL ALAN DAVIS, EDNA HOLLINGSWORTH DAVIS and HAZEL C. HOLLINGSWORTH", "name_abbreviation": "Medford v. Davis", "decision_date": "1983-05-17", "docket_number": "No. 8230SC385", "first_page": "308", "last_page": "311", "citations": [ { "type": "official", "cite": "62 N.C. App. 308" } ], "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": "187 S.E. 2d 20", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 718", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573537 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0718-01" ] }, { "cite": "239 S.E. 2d 439", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 616", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566719 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0616-01" ] }, { "cite": "196 S.E. 2d 505", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559336 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0533-01" ] }, { "cite": "215 S.E. 2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "26 N.C. App. 314", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551876 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/26/0314-01" ] }, { "cite": "197 S.E. 2d 505", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 604", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559669 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0604-01" ] }, { "cite": "132 S.E. 2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 139", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573336 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0139-01" ] }, { "cite": "185 S.E. 2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "102" } ], "opinion_index": 0 }, { "cite": "280 N.C. 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570333 ], "year": 1971, "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0170-01" ] } ], "analysis": { "cardinality": 477, "char_count": 8106, "ocr_confidence": 0.792, "pagerank": { "raw": 2.9563876966728033e-07, "percentile": 0.8492522150905323 }, "sha256": "2d372dd1298a711f17d91f204ddf7f29de956cc52743b9b817796d10168ebfa3", "simhash": "1:cd52400a6dc3485d", "word_count": 1361 }, "last_updated": "2023-07-14T22:38:59.213578+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge VAUGHN and Judge EAGLES concur." ], "parties": [ "JEWEL MEDFORD, Guardian ad Litem for SHERRI RENAE HEATHERLY v. WENDELL ALAN DAVIS, EDNA HOLLINGSWORTH DAVIS and HAZEL C. HOLLINGSWORTH" ], "opinions": [ { "text": "WEBB, Judge.\nIn her first argument, plaintiff contends the trial judge committed reversible error when he entered the jury room and gave the jurors further instructions in the absence of the parties and their attorneys. From the record, it appears that after the jurors had retired and deliberated for over an hour, the judge was informed that they had some questions. There were people in the courtroom who had gathered for a public meeting and the parties and their counsel agreed to allow the judge, reporter, and bailiff to enter the jury room for the questions. Additional instructions were thereafter given by the judge in the jury room. Plaintiff does not contend that these instructions were erroneous or prejudicial. Rather, she urges this Court to adopt a per se rule which would require a new trial whenever a judge communicates with the jury in the jury room in the absence of counsel and the parties, regardless of whether prejudice has been shown.\nOur research has disclosed no North Carolina cases on point, and there is no North Carolina rule of civil procedure or practice which directly addresses this issue. On the facts presented here, we do not believe we should hold there was prejudicial error. The trial judge\u2019s conduct was expressly consented to by the parties and their counsel before he went into the jury room. The consent of plaintiff and her counsel either caused or joined in causing any error committed by the court, and \u201c[i]nvited error is not ground for a new trial.\u201d State v. Payne, 280 N.C. 170, 171, 185 S.E. 2d 101, 102 (1971); see Overton v. Overton, 260 N.C. 139, 132 S.E. 2d 349 (1963).\nNext, plaintiff argues that defense witness Dan Medford should not have been allowed to testify about the manner in which Davis operated the vehicle. When he was asked \u201cHow was Alan Pavis] driving?\u201d, Medford responded, \u201cNormal, to me, it was fine.\u201d At this point, plaintiff\u2019s counsel objected \u201cas to what is normal.\u201d The objection was overruled, and Medford testified, \u201cIt was a reasonable speed.\u201d Plaintiff\u2019s motion to strike this testimony was denied.\nAt the outset, we note that plaintiff\u2019s objection may have been untimely since it was not made until after Medford had already answered the question calling for a description of Davis\u2019s driving. Brown v. Neal, 283 N.C. 604, 197 S.E. 2d 505 (1973). Assuming, arguendo, that the objection was taken in apt time, we hold Medford\u2019s testimony concerning the operation of the vehicle to be admissible. A witness is permitted to give opinion evidence in the form of a \u201cshorthand statement of the facts\u201d when it is impractical to describe the facts in detail. State v. Brown, 26 N.C. App. 314, 215 S.E. 2d 802 (1975); see 1 Brandis on N.C. Evidence \u00a7 125 (1982). Contrary to plaintiff\u2019s contention, Medford\u2019s testimony as to how defendant was driving did not invade the province of the jury since it was not an opinion on the ultimate issue to be decided by the jury. The ultimate issue was whether defendant was negligent at the time of the accident. This assignment of error is overruled.\nPlaintiff also assigns error to the exclusion of testimony from Melody Powell that \u201cHe Pavis] was driving too fast.\u201d Plaintiff contends this testimony was admissible as a shorthand statement of fact concerning the witness\u2019s observation that defendant was traveling at an excessive rate of speed. We believe error, if any, in the exclusion of this evidence was cured when Ms. Powell subsequently testified, without objection, that \u201cthe car was going fast.\u201d Error in the exclusion of evidence is harmless when other evidence of the same import is admitted. State v. Edmondson, 283 N.C. 533, 196 S.E. 2d 505 (1973).\nPlaintiff further assigns error to the court\u2019s refusal to let the investigating officer testify about what he observed inside Davis\u2019s vehicle as well as his observations of Davis. Assuming, without deciding, that the questions asked of the investigating officer were competent, the record does not show what his answers would have been. Therefore, we cannot determine whether plaintiff was prejudiced by their exclusion. See State v. Shaw, 293 N.C. 616, 239 S.E. 2d 439 (1977). The appellant has the burden of showing not only that error was committed but also that it was prejudicial. State v. Robinson, 280 N.C. 718, 187 S.E. 2d 20 (1972). This assignment of error is overruled.\nFinally, plaintiff argues that the court erred in failing to grant her motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. Inasmuch as we have found no error in the trial, we conclude that the court did not abuse its discretion in denying plaintiff\u2019s motions.\nNo error.\nChief Judge VAUGHN and Judge EAGLES concur.", "type": "majority", "author": "WEBB, Judge." } ], "attorneys": [ "Russell L. McLean, III, for plaintiff appellant.", "Roberts, Cogbum, McClure and Williams, by Max 0. Cogbum and Issac N. Northup, Jr.; and Van Winkle, Buck, Wall, Starnes and Davis, by O. E. Starnes, Jr., for defendant appellee." ], "corrections": "", "head_matter": "JEWEL MEDFORD, Guardian ad Litem for SHERRI RENAE HEATHERLY v. WENDELL ALAN DAVIS, EDNA HOLLINGSWORTH DAVIS and HAZEL C. HOLLINGSWORTH\nNo. 8230SC385\n(Filed 17 May 1983)\n1. Criminal Law \u00a7\u00a7 101.4, 122\u2014 additional instructions in jury room \u2014 consent by parties\nThe trial judge did not err when he entered the jury room to answer questions and gave the jurors further instructions in the absence of the parties and their attorneys where the trial judge was informed that the jury had some questions after it had deliberated for over an hour, a public meeting was being held in the courtroom at that time, and the parties and counsel agreed to permit the judge, reporter and bailiff to enter the jury room for the questions.\n2. Automobiles and Other Vehicles \u00a7 46; Evidence \u00a7 42.1\u2014 manner of driving car \u2014 reasonable speed \u2014 shorthand statement of fact\nA witness\u2019s testimony that defendant was driving \u201cnormal\u201d and at a \u201creasonable speed\u201d at the time of an accident was competent as a shorthand statement of fact and did not invade the province of the jury.\n3. Evidence 8 42.1\u2014 driving \u201ctoo fast\u201d \u2014 exclusion of testimony \u2014 harmless error\nAny error in the exclusion of testimony that defendant \u201cwas driving too fast\u201d was cured when the witness subsequently testified without objection that \u201cthe car was going fast.\u201d\nAPPEAL by plaintiff from Thornburg, Judge. Judgment entered 4 September 1981 in Superior Court, HAYWOOD County. Heard in the Court of Appeals 16 February 1983.\nThis is a negligence action arising out of an automobile accident which occurred on 15 October 1976. At the time of the accident, Sherri Heatherly, Melody Powell, and Dan Medford were passengers in a vehicle operated by defendant Wendell Alan Davis. The complaint alleged that Davis negligently failed to reduce speed and keep the automobile under proper control, that he operated the vehicle at a dangerous and reckless speed, and that he operated it without due care and caution.\nAt trial, plaintiff\u2019s evidence tended to show that Wendell Alan Davis was traveling on a gravel road, Rural Road #1188, when his vehicle went off the roadway, into a fence two feet to three feet away, and down a steep embankment. At the point of the accident, there was a 10% uphill grade. An investigating officer estimated the speed of the vehicle at 15 m.p.h. at the time of impact with the fence. There were marks on the road, consisting of little piles of gravel, which apparently were made by tires spinning in a forward motion. Melody Powell testified that the car had been going fast, that it had been slinging gravel, and that she had asked Davis to slow down. Sherri Heatherly was thrown from the vehicle, sustaining numerous injuries which have left her 75% permanently and totally disabled.\nDavis testified that the vehicle .was traveling 15 m.p.h. when he felt the earth give way and the vehicle go down the bank. Davis\u2019s operation of the vehicle was described by Dan Medford as \u201c[normal\u201d and \u201cfine.\u201d Medford also testified that the speed of the vehicle was \u201creasonable.\u201d\nThe jury returned a verdict, finding that Wendell Davis was not negligent. From judgment entered on the verdict, plaintiff appeals.\nRussell L. McLean, III, for plaintiff appellant.\nRoberts, Cogbum, McClure and Williams, by Max 0. Cogbum and Issac N. Northup, Jr.; and Van Winkle, Buck, Wall, Starnes and Davis, by O. E. Starnes, Jr., for defendant appellee." }, "file_name": "0308-01", "first_page_order": 340, "last_page_order": 343 }