{ "id": 8527020, "name": "JAMES L. GOBLE and wife, LINDA GOBLE v. BOBBY N. HELMS and WINN-DIXIE CHARLOTTE, INC.", "name_abbreviation": "Goble v. Helms", "decision_date": "1983-10-18", "docket_number": "No. 8224SC1082", "first_page": "439", "last_page": "454", "citations": [ { "type": "official", "cite": "64 N.C. App. 439" } ], "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": "290 S.E. 2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "605" } ], "opinion_index": 0 }, { "cite": "305 N.C. 478", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571152 ], "year": 1982, "pin_cites": [ { "page": "487" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0478-01" ] }, { "cite": "263 S.E. 2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "41" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 531", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549894 ], "year": 1980, "pin_cites": [ { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/nc-app/45/0531-01" ] }, { "cite": "213 S.E. 2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "348-49" } ], "opinion_index": 0 }, { "cite": "286 N.C. 664", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570074 ], "year": 1975, "pin_cites": [ { "page": "673" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0664-01" ] }, { "cite": "74 A.L.R. 3d 805", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "811-12", "parenthetical": "amount of damages for loss of consortium must be left to \"enlightened consciences\" or \"experience and judgment\" of impartial jurors" } ], "opinion_index": 0 }, { "cite": "266 S.E. 2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "822" }, { "page": "822" } ], "opinion_index": 0 }, { "cite": "300 N.C. 295", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561077 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0295-01" ] }, { "cite": "49 S.E. 2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "pin_cites": [ { "page": "652" } ], "opinion_index": 0 }, { "cite": "229 N.C. 340", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12165913 ], "year": 1948, "pin_cites": [ { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/nc/229/0340-01" ] }, { "cite": "117 S.E. 2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "pin_cites": [ { "page": "270" } ], "opinion_index": 0 }, { "cite": "253 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625848 ], "year": 1960, "pin_cites": [ { "page": "451-52" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0444-01" ] }, { "cite": "167 S.E. 2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "102" } ], "opinion_index": 0 }, { "cite": "4 N.C. App. 325", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553376 ], "year": 1969, "pin_cites": [ { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/nc-app/4/0325-01" ] }, { "cite": "144 S.E. 2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "889" } ], "opinion_index": 0 }, { "cite": "265 N.C. 682", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576768 ], "year": 1965, "pin_cites": [ { "page": "686" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0682-01" ] }, { "cite": "254 S.E. 2d 633", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "637" } ], "opinion_index": 0 }, { "cite": "41 N.C. App. 267", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548845 ], "year": 1979, "pin_cites": [ { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/nc-app/41/0267-01" ] }, { "cite": "263 S.E. 2d 565", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "570" } ], "opinion_index": 0 }, { "cite": "299 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575274 ], "year": 1980, "pin_cites": [ { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0476-01" ] }, { "cite": "138 S.E. 2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "545-46" } ], "opinion_index": 0 }, { "cite": "262 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570996 ], "year": 1964, "pin_cites": [ { "page": "668-69" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0663-01" ] }, { "cite": "139 S.E. 2d 753", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1965, "pin_cites": [ { "page": "760" } ], "opinion_index": 0 }, { "cite": "263 N.C. 317", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569848 ], "year": 1965, "pin_cites": [ { "page": "325" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0317-01" ] }, { "cite": "197 S.E. 2d 505", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1973, "pin_cites": [ { "page": "511" }, { "page": "510-11" } ], "opinion_index": 0 }, { "cite": "283 N.C. 604", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559669 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "613" }, { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0604-01" ] }, { "cite": "112 S.E. 2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "251 N.C. 650", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626863 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/251/0650-01" ] }, { "cite": "129 S.E. 2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "297" } ], "opinion_index": 0 }, { "cite": "258 N.C. 686", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562414 ], "year": 1963, "pin_cites": [ { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/nc/258/0686-01" ] }, { "cite": "186 S.E. 2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "174" } ], "opinion_index": 0 }, { "cite": "280 N.C. 376", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572062 ], "year": 1972, "pin_cites": [ { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0376-01" ] }, { "cite": "221 S.E. 2d 920", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "924" } ], "opinion_index": 0 }, { "cite": "28 N.C. App. 527", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550785 ], "year": 1976, "pin_cites": [ { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/nc-app/28/0527-01" ] }, { "cite": "131 S.E. 2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "897" } ], "opinion_index": 0 }, { "cite": "260 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573075 ], "year": 1963, "pin_cites": [ { "page": "95-96" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0092-01" ] }, { "cite": "190 S.E. 2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "653" } ], "opinion_index": 0 }, { "cite": "15 N.C. App. 665", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553574 ], "year": 1972, "pin_cites": [ { "page": "669" } ], "opinion_index": 0, "case_paths": [ "/nc-app/15/0665-01" ] }, { "cite": "287 S.E. 2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "909" }, { "page": "909" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 151", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519938 ], "year": 1982, "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/nc-app/56/0151-01" ] }, { "cite": "160 S.E. 2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "745" } ], "opinion_index": 0 }, { "cite": "273 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575725 ], "year": 1968, "pin_cites": [ { "page": "532" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0519-01" ] }, { "cite": "258 S.E. 2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "855" } ], "opinion_index": 0 }, { "cite": "43 N.C. App. 278", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551209 ], "year": 1979, "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/nc-app/43/0278-01" ] }, { "cite": "253 S.E. 2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "40 N.C. App. 456", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551249 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/40/0456-01" ] }, { "cite": "134 S.E. 2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "261 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573667 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0392-01" ] }, { "cite": "256 S.E. 2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 454", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571251, 8571220, 8571189, 8571290, 8571325 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0454-03", "/nc/297/0454-02", "/nc/297/0454-01", "/nc/297/0454-04", "/nc/297/0454-05" ] }, { "cite": "252 S.E. 2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "255-56" } ], "opinion_index": 0 }, { "cite": "40 N.C. App. 150", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549085 ], "year": 1979, "pin_cites": [ { "page": "154-55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/40/0150-01" ] }, { "cite": "301 S.E. 2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "364" } ], "opinion_index": 0 }, { "cite": "308 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707972 ], "year": 1983, "pin_cites": [ { "page": "91" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0085-01" ] }, { "cite": "215 S.E. 2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "91" }, { "page": "92" } ], "opinion_index": 0 }, { "cite": "287 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564077 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "518" }, { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0515-01" ] } ], "analysis": { "cardinality": 1222, "char_count": 34889, "ocr_confidence": 0.808, "pagerank": { "raw": 4.088273822605566e-07, "percentile": 0.9091512671202067 }, "sha256": "d3f4aa0d38362a8d107e0c4ff43c39bd02db19c5e5e5f2258d290f42ffc1d7da", "simhash": "1:83e6f0fd2d97a742", "word_count": 5604 }, "last_updated": "2023-07-14T21:03:16.623003+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge VAUGHN and Judge Phillips concur." ], "parties": [ "JAMES L. GOBLE and wife, LINDA GOBLE v. BOBBY N. HELMS and WINN-DIXIE CHARLOTTE, INC." ], "opinions": [ { "text": "WHICHARD, Judge.\nEvidentiary Rulings\nDefendants contend the court erred in overruling their objection to a lengthy hypothetical question to plaintiffs\u2019 medical witness inquiring \u201cwhether [plaintiff-husband\u2019s] broken neck and other injuries described could or might have been received in the accident?\u201d They argue that the question failed to include relevant facts and included irrelevant ones.\nWhen this case was tried, there was no requirement that expert testimony be in response to a hypothetical question. See G.S. 8-58.12 (1981). When used, however, \u201ca hypothetical question which omits any reference to a fact which goes to the essence of the case and therefore presents a state of facts so incomplete that an opinion based on it would be obviously unreliable is improper, and the expert witness\u2019s answer will be excluded.\u201d Dean v. Coach Co., 287 N.C. 515, 518, 215 S.E. 2d 89, 91 (1975).\nThe facts allegedly omitted here, while having some bearing on plaintiff-husband\u2019s condition, did not go to the essence of the case so as to present an obviously incomplete and unreliable basis for the expert\u2019s opinion. In such situations it is incumbent upon the adversary, if concerned that omitted facts might elicit a different opinion, to supply them on cross-examination. Dean, supra, 287 N.C. at 520, 215 S.E. 2d at 92; see also Rutledge v. Tultex Corp., 308 N.C. 85, 91, 301 S.E. 2d 359, 364 (1983); Lee v. Tire Co., 40 N.C. App. 150, 154-55, 252 S.E. 2d 252, 255-56, disc. rev. denied, 297 N.C. 454, 256 S.E. 2d 807 (1979). Defendants here were given an opportunity to cross-examine the witness and supply any additional facts they felt were necessary. Thus, the omission does not require a finding of error.\nNor is the allegedly irrelevant matter, which related to plaintiff-husband\u2019s employment and absentee record, sufficiently prejudicial to constitute grounds for a new trial. For examples of irrelevant matter found to be prejudicial, see Ingram v. McCuiston, 261 N.C. 392, 134 S.E. 2d 705 (1964); Lindsey v. The Clinic for Women, 40 N.C. App. 456, 253 S.E. 2d 304 (1979). We find no merit to this contention.\nDefendants contend the court erred in overruling their objection to the following hypothetical question posed to plaintiffs\u2019 medical witness:\nDoctor, if the Jury should find as facts from the greater weight of the evidence that prior to the time that you saw [plaintiff-husband] on May 5, 1980, that he had been involved in a tractor-trailer accident with a head-on collision, that as a result of that he blacked out or lost consciousness, was not able to stand and had to hold on to a car for support, and was placed on a pallet and transported to the Emergency Room where you saw him, if the Jury should find those things as facts from the greater weight of the evidence in this case, do you have an opinion as to the cause of the unconsciousness or black out condition of this man?\nThey argue that the phrase \u201cthat as a result of that he blacked out or lost consciousness\u201d assumes the answer to the question as part of the statement of facts.\nA hypothetical question \u201cshould [not] assume those facts sought to be established.\u201d Ryder v. Benfield, 43 N.C. App. 278, 286, 258 S.E. 2d 849, 855 (1979). It is evident that the words \u201cafter that\u201d or \u201cimmediately thereafter,\u201d rather than \u201cas a result of that,\u201d would have more aptly stated the question.\n\u201cAn objection is waived [, however,] when evidence of the same import is admitted without objection.\u201d Mills, Inc. v. Terminal, Inc., 273 N.C. 519, 532, 160 S.E. 2d 735, 745 (1968). Here the medical witness testified, without objection, that a direct injury to the head or brain could cause unconsciousness. Plaintiff-husband testified that he had \u201cblacked out\u201d following the accident. On recross counsel for defendants asked the medical witness, \u201c[D]id [plaintiff-husband] have a concussion caused by this accident?\u201d; and they received an affirmative answer.\nIn light of this and other evidence, we hold defendants\u2019 objection to the hypothetical question waived, and deem harmless any error from failure to sustain it.\nDefendants contend the court erred in overruling their objection to, and denying their motion to strike, the following testimony by plaintiff-wife:\nQ. Will you very frankly describe your sexual compatibility now with your husband as compared before this accident?\nA. Well, it\u2019s very hard for [him] to relax now, you know, like he used to. And well sometimes we just can\u2019t have sexual relations because of that, I believe.\nThey argue that there was no medical evidence relating to plaintiff-husband\u2019s inability to engage in sexual activities, that the pathological cause of an ailment is a scientific question, and that plaintiff-wife\u2019s testimony \u201cprovides a lay opinion\u201d as to the cause of plaintiff-husband\u2019s inability to relax and its relation to his sexual capacities.\nWhile expert opinion on this subject would have been admissible, see G.S. 8-58.13, 1 H. Brandis, North Carolina Evidence \u00a7 132, at 511 (1982), it was not required. \u201cThe state of a person\u2019s health, a person\u2019s ability to work or engage in activities, a person\u2019s physical appearance and sleeping habits, among other things, are proper subjects of opinion testimony by non-experts.\u201d Craven v. Chambers, 56 N.C. App. 151, 157, 287 S.E. 2d 905, 909 (1982). Thus, when a witness is \u201cable to describe the state of [a] plaintiffs health after the accident and to compare it with that existing before the accident,\u201d exclusion of the witness\u2019 testimony is error. Id. at 157-58, 287 S.E. 2d at 909; see also Kenney v. Kenney, 15 N.C. App. 665, 669, 190 S.E. 2d 650, 653 (1972); 1 H. Brandis, supra, \u00a7 129, at 498.\nPlaintiff-husband\u2019s ability to relax was an aspect of his health as to which opinion testimony by a non-expert was admissible. Plaintiff-wife, by virtue of observation and experience, was well qualified to offer her opinion. We thus find defendants\u2019 contention without merit.\nDefendants similarly contend the court erred in denying their motion to strike testimony by plaintiff-husband\u2019s former employer that plaintiff-husband \u201cwas stiff, he was moving and also in his face when he would talk to me he was talking out of one side of his mouth, because one side of his mouth or face was numb.\u201d We find this contention equally without merit. As stated above, this is an area where non-expert testimony is permissible as long as the witness had an opportunity to observe the plaintiff. Craven v. Chambers, supra. The witness testified to repeated opportunities to observe plaintiff-husband in his employment situation over a four-month period before the accident and at least twice after the accident. His testimony was merely a shorthand statement as to an observed physical fact, and as such its admission was not error. See 1 H. Brandis, supra, \u00a7 125. Assuming error, arguendo, it was clearly non-prejudicial in view of substantial other evidence regarding plaintiff-husband\u2019s condition of numbness.\nDefendants contend the court erred in admitting evidence of plaintiff-husband\u2019s prospects regarding future earnings and promotions with the company which employed him when the collision occurred. This evidence was pertinent to a determination of the extent of plaintiff-husband\u2019s damages, however, and \u201cgreat latitude\u201d is allowed in the introduction of such evidence. See Smith v. Corsat, 260 N.C. 92, 95-96, 131 S.E. 2d 894, 897 (1963). The right of cross-examination provides the opposing party opportunity to challenge estimates of this nature, see Peterson v. Johnson, 28 N.C. App. 527, 531, 221 S.E. 2d 920, 924 (1976), and defendants exercised that right only sparingly. We find no error in the admission of this evidence.\nDefendants contend the court erred in admitting, over objection, the following testimony on redirect examination of the medical witness:\nQ. If after a person has been involved in an accident and has a broken neck, if later there is an observation of one pupil becoming larger and one smaller at the same time, that indicates to you as a medical doctor a brain injury?\nA. Yes, I think it would indicate that there is something intracranial; right, inside of the skull.\nDefendants had cross-examined this witness in several respects relating to injuries to the brain. They thus \u201copened the door to the question propounded by the plaintiff[s] on re-direct examination,\u201d Johnson v. Massengill, 280 N.C. 376, 383, 186 S.E. 2d 168, 174 (1972), entitling plaintiffs to examine the witness regarding such matter. See 1 H. Brandis, supra, \u00a7 36. We find this contention without merit.\nDefendants\u2019 final evidentiary contention is that the court erred in admitting certain evidence which it subsequently withdrew and instructed the jury not to consider. \u201cOrdinarily it is presumed that the jury followed [the court\u2019s] instruction and the admission is not held to be reversible error unless it is apparent from the entire record that the prejudicial effect of [the evidence] was not removed from the minds of the jury by the court\u2019s admonition.\u201d Smith v. Perdue, 258 N.C. 686, 690, 129 S.E. 2d 293, 297 (1963); see also Driver v. Edwards, 251 N.C. 650, 112 S.E. 2d 98 (1960). We have examined the matters complained of in light of the entire record, and we perceive no prejudicial effect warranting a new trial.\nInstructions\nTo instruct on an element of damages, absent evidence thereof, is error. E.g., Brown v. Neal, 283 N.C. 604, 613, 197 S.E. 2d 505, 511 (1973). Defendants contend the court erred in instructing that the jury could award plaintiff-husband damages for disfigurement when there was no evidence thereof. Plaintiff-husband testified, however, to numbness in much of his body and \u201ca cramping or drawing ... in [his] face [which he could feel] just like somebody closing their hand on it.\u201d Another witness testified that when plaintiff-husband talked to him, \u201che was talking out of one side of his mouth.\u201d\nTo disfigure is to spoil or blemish the appearance or shape of something. See American Heritage Dictionary 377 (New College Ed. 1978). The foregoing evidence showed a spoiling or blemishing of plaintiff-husband\u2019s mouth and facial features which justified an instruction on disfigurement.\nDefendants contend there was no evidence to support the instruction that the jury could award damages for medical expenses which plaintiff-husband would pay or incur in the future as a proximate result of their negligence. There was testimony, however, from a medical expert, that plaintiff-husband had reached maximum improvement. The witness stated: \u201cI think he has recovered. I think he is going to be the way he is now. ... I think he has improved to what degree he\u2019s going to improve. . . . I think he most probably will stay at the level he is at now.\u201d He also stated, though, that plaintiff-husband \u201ccould receive treatment for his present condition.\u201d Plaintiff-husband testified that he continued to go to the doctor occasionally to obtain a muscle relaxant prescription. He also testified that he had averaged seeing the doctor once a month since the collision, and that he continued to wear a cervical collar to relieve tension or pain in his neck. Both plaintiff-husband and his doctor testified to the possibility of plaintiff-husband\u2019s going to a university medical center for further evaluation. Finally, plaintiff-husband introduced statements of account showing various medical and pharmaceutical expenses incurred as a result of the collision, from which the jury could reasonably estimate anticipated expenses.\nIt is proper to instruct the jury to compensate plaintiff for prospective damages \u201cwhere there is sufficient evidence of pain, disability or other injury continuing into the future to justify consideration thereof.\u201d Brown, supra, 283 N.C. at 613, 197 S.E. 2d at 510-11. The foregoing evidence sufficed for that purpose, and the court did not err in the instruction complained of.\nDefendants contend the court erred in instructing that the jury could award damages to plaintiff-husband for loss of use of a part of his body due to numbness and weakness. Again, the medical expert testified that plaintiff-husband had reached maximum improvement. Several witnesses testified to his physical strength before and after the collision, indicating a diminution therein. Plaintiff-husband testified that before the collision he had never suffered from numbness in his body, and that after the collision he had \u201cnumbness in [his] body from right the center all the way down.\u201d He indicated that this began \u201cat the bottom of [his] foot.\u201d He testified that \u201call the way up there\u2019s numbness on this left side in my hand, my arm, my chest and this side . . . you can touch it and touch this one it\u2019s like touching two different people.\u201d He also testified to \u201ca cramping or drawing ... in [his] face\u201d and a pain in his neck. The medical expert testified that \u201con pin prick [plaintiff-husband had] some decreasefd] sensation . . . on the left side.\u201d He also testified to a slight weakness in plaintiff-husband\u2019s left hand.\nThe foregoing evidence sufficed to merit the instruction complained of. Defendants\u2019 argument that the evidence was insufficient to establish a causal connection between the collision and these conditions is without merit. Plaintiff-husband testified that he had not experienced these conditions before the collision, and that he had since. This testimony established \u201cfacts in evidence . . . such that any layman of average intelligence and experience would know what caused the injuries complained of.\u201d Gillikin v. Burbage, 263 N.C. 317, 325, 139 S.E. 2d 753, 760 (1965). Medical evidence to establish the causal connection thus was not required. Id.\nAssuming, arguendo, that medical evidence was necessary to establish causal connection, there was testimony from the medical expert that he thought the broken neck and other injuries could have been received in the accident. We have herein found this evidence sufficiently \u201cbased on . . . reasonable probabilities\u201d rather than \u201cmerely speculative and mere possibility,\u201d and thus have declined to hold its admission, which is in the exercise of the trial court\u2019s discretion, erroneous. See Lockwood v. McCaskill, 262 N.C. 663, 668-69, 138 S.E. 2d 541, 545-46 (1964). There thus was sufficient evidence on causation, medical and otherwise, to merit the instruction.\nDefendants contend the court failed in its instructions to comply with G.S. 1A-1, Rule 51(a), which provides:\nIn charging the jury . . . [the] judge . . . shall declare and explain the law arising on the evidence .... The judge shall not be required to state such evidence except to the extent necessary to explain the application of the law thereto; provided, the judge shall give equal stress to the contentions of the various parties.\nThe gravamen of their argument is that the court reviewed evidence favorable to plaintiffs, but none favorable to defendants.\nDefendants introduced no evidence, but relied on cross-examination of plaintiffs\u2019 witnesses to establish evidence favorable to them. The court instructed the jury that this was the case, and instructed that it should consider in its deliberations plaintiffs\u2019 evidence which it considered favorable to defendants. The court chose not to summarize the parties\u2019 contentions, as it had the right to do. Board of Transportation v. Rand, 299 N.C. 476, 483, 263 S.E. 2d 565, 570 (1980); Rector v. James, 41 N.C. App. 267, 271, 254 S.E. 2d 633, 637 (1979).\nWe perceive no basis in the summation given, or omissions therein, for awarding a new trial. Moreover, defendants did not object to the summation at trial, and thus cannot do so now. N.C. R. App. P. 10(b)(2).\nDefendants contend the court erred in its instructions regarding the stipulation that their negligence had caused the collision. Early in its instructions the court stated that defendants had \u201cadmitted that [their] negligence . . . was the proximate cause of any injury that the Plaintiff might have received from this accident.\u201d Counsel for defendants immediately requested and received permission to approach the bench. The court then stated:\nNow, Members of the Jury, I may have misstated that in some respect that the negligence of the Defendants was the proximate cause of the accident that was involved out there and' not necessarily the proximate cause of the injury, any injuries received, but the proximate cause of the accident that was had out there on the highway.\nCounsel for defendants made no further objections or requests at that point, but at the end of the charge again objected to the instructions with respect to the stipulation. The court then further instructed as follows:\nMembers of the Jury, paragraph number twelve of the stipulation . . . reads as follows:\nThe Defendants will concede the issue of liability and admit liability in this case with respect to the allegations of negligence and will waive presenting to the Jury any issue concerning the issue of liability. That the negligence of the Defendants was the proximate cause of the motor vehicle collision. There is no stipulation that the Plaintiffs present condition was caused by the accident.\nCounsel for defendants made no further objections or requests.\nDefendants argue that the foregoing constitutes conflicting instructions on a material point, and thus requires a new trial. See Barber v. Heeden, 265 N.C. 682, 686, 144 S.E. 2d 886, 889 (1965); Kinney v. Goley, 4 N.C. App. 325, 332, 167 S.E. 2d 97, 102 (1969). It has long been held, however, that where the court inadvertently makes an error and expressly corrects it before the jury retires, the error is rendered harmless. See Barnes v. House, 253 N.C. 444, 451-52, 117 S.E. 2d 265, 270 (1960); Wyatt v. Coach Co., 229 N.C. 340, 342, 49 S.E. 2d 650, 652 (1948). Further, the clear purpose of Rule 10(b)(2) of the Rules of Appellate Procedure, which makes objection to portions of the charge before the jury retires a prerequisite to assigning error thereto, was to avoid the necessity of retrials by correction of errors prior to jury deliberation. The instructions here served that purpose. The final instruction clearly informed the jury that defendants had stipulated only to the issue of liability, and not that plaintiff-husband\u2019s condition at trial was caused by the accident. We thus find this contention without merit.\nDefendants\u2019 final contention regarding the instructions is that the court erred in instructing on plaintiff-wife\u2019s loss of consortium. The pertinent part of the instruction complained of was as follows:\n[Plaintiff-wife] is entitled to recover fair compensation for the actual loss of marital services, society, affection, companionship or sexual relations of her husband, which she [i]ncurred as a proximate result of the Defendant[\u2019]s negligence.\nYou are instructed to limit your consideration of damages strictly to fair compensation for [plaintiff-wife\u2019s] loss of marital services, of society, affection, companionship, sexual relations.\n[Plaintiff-wife] is also entitled to fair compensation [for] any future loss of consortium proximately resulting from the Defendantsf\u2019] negligence which will occur during [her] marriage to her husband. This means that you must award prospective damages and that recovery is limited to the shorter of the two life expectancies of [plaintiff-wife] and her husband.\nOur Supreme Court recently re-established a cause of action for loss of consortium in this jurisdiction. Nicholson v. Hospital, 300 N.C. 295, 266 S.E. 2d 818 (1980). While recognizing \u201cthat consortium is difficult to define,\u201d it stated that \u201cit embraces service, society, companionship, sexual gratification and affection.\u201d Id. at 302, 266 S.E. 2d at 822. It did so \u201cin recognition of the many tangible and intangible benefits resulting from the loving bond of the marital relationship.\u201d Id.; see N.C. Pattern Jury Instructions-Civil \u00a7\u00a7 810.80, 810.85 (1981); 41 C.J.S., Husband & Wife \u00a7 11; 41 Am. Jur. 2d, Husband & Wife \u00a7\u00a7 448-50; Annot., 74 A.L.R. 3d 805 (1976).\nThe court\u2019s instructions followed, almost verbatim, the language of Nicholson, supra. Defendants do not contend otherwise. Their argument is that there was no evidence from which the jury \u201ccould find injury, loss or damage to or on any of these elements of consortium,\u201d and that there was no evidence from which the jury could find \u201cthat any of these elements individually or collectively would continue to exist in the future.\u201d\nPlaintiff-wife, however, testified that prior to the collision plaintiff-husband was very strong and healthy and did a substantial amount of work around the parties\u2019 home and farm, and that since the collision she \u201c[hadn\u2019t] seen him do anything\u201d; that prior to the collision he was \u201cslow tempered,\u201d but that thereafter he had been \u201cvery irritable and everything seems to just really get on his nerves\u201d; and that prior to the collision he was in very good spirits, with a happy and hopeful mental attitude, but that thereafter he was at times very discouraged and listless and did not have the same zest for life. She testified that prior to the collision they got along very well, were very much in love, and had a very good relationship; but that thereafter it had been very difficult for him to relax, and they sometimes could not have sexual relations because of that. She acknowledged plaintiff-husband\u2019s testimony that prior to the collision they had intercourse several times a month, but thereafter \u201c[s]omething like\u201d only once or twice a month. She could not say that she loved him less subsequent to the accident, but she did say that she \u201clove[d] him differently.\u201d\nThe foregoing and other evidence clearly sufficed to establish a demonstrable diminution in plaintiff-husband\u2019s capacity to render service to plaintiff-wife. It also established a reduction in the quality of his general society and companionship, and in his ability to provide sexual gratification and affection. It thus sufficed to support the instruction as to the elements of plaintiff-wife\u2019s loss for which the jury could award damages. The medical testimony that plaintiff-husband had reached maximum improvement and was \u201cgoing to be the way he is now\u201d sufficed to justify the instruction on plaintiff-wife\u2019s entitlement to compensation for future loss of consortium. This contention is thus without merit.\nDirected Verdict/JNOV\nDefendants contend the court erred in denying their motions for directed verdict and judgment notwithstanding the verdict on the loss of consortium issue. As noted above, we find substantial evidence of diminution of various aspects of the marital relationship which merited submission of this issue to the jury.\nAs part of this argument defendants contend that while there was evidence as to household chores which plaintiff-husband performed before the collision, which he could not perform afterward, there was no evidence as to the value of such services. In light of the substantial evidence as to loss of consortium in other respects, however, absence of such evidence did not mandate removal of this issue from the jury. Moreover, our Supreme Court has expressly rejected the \u201cinference that damages in a consortium action are too remote to measure.\u201d Nicholson, supra, 300 N.C. at 302, 266 S.E. 2d at 822. The assessment of damages for loss of consortium, as for wrongful death, \u201cmust, to a large extent, be left to the good sense and fair judgment of the jury \u2014 subject ... to the discretionary power of the judge to set its verdict aside when, in his opinion, equity and justice so require.\u201d Brown v. Moore, 286 N.C. 664, 673, 213 S.E. 2d 342, 348-49 (1975); see 74 A.L.R. 3d 805, 811-12 (1976) (amount of damages for loss of consortium must be left to \u201cenlightened consciences\u201d or \u201cexperience and judgment\u201d of impartial jurors).\nThe court did not err in denying the motions for directed verdict and judgment notwithstanding the verdict on the loss of consortium issue.\nMotion To Set Aside Verdicts\nDefendants contend the court erred in denying their G.S. 1A-1, Rule 59(b) motion to set aside the verdicts on grounds of ex-cessiveness. The motion was directed to the sound discretion of the trial judge, and his decision will not be disturbed absent obvious abuse. Griffin v. Griffin, 45 N.C. App. 531, 533, 263 S.E. 2d 39, 41 (1980). \u201c[A]n appellate court should not disturb a discretionary Rule 59 order unless it is reasonably convinced by the cold record that the trial judge\u2019s ruling probably amounted to a substantial miscarriage of justice.\u201d Worthington v. Bynum, 305 N.C. 478, 487, 290 S.E. 2d 599, 605 (1982).\nThe record contains substantial evidence that as a result of the collision plaintiff-husband sustained severe temporary injuries, including lacerations, contusions, spinal fracture, and concussion. It indicates that he had continuing problems which included depression, numbness, weakness, insomnia, pain in his neck and side, and sexual impairment; that he lost earnings and was incapacitated to perform physical labor; and that the general quality of his life was diminished in numerous respects. It establishes a demonstrable diminution in the quality of his relationship with plaintiff-wife. It indicates that at the time of trial he had reached maximum improvement, and thus that the numerous problems he was then experiencing could be expected to continue. Finally, it establishes that when he received the injuries, he had a life expectancy of an additional 31.57 years.\nIn light of the foregoing, denial of defendants\u2019 motion did not amount to a substantial miscarriage of justice, and we find no abuse of discretion.\nNo error.\nChief Judge VAUGHN and Judge Phillips concur.", "type": "majority", "author": "WHICHARD, Judge." } ], "attorneys": [ "Byrd, Byrd, Ervin, Blanton, Whisnant & McMahon, P.A., by Robert B. Byrd and Sam J. Ervin, IV, for plaintiff appellees.", "Morris, Golding and Phillips, by James N. Golding, for defendant appellants." ], "corrections": "", "head_matter": "JAMES L. GOBLE and wife, LINDA GOBLE v. BOBBY N. HELMS and WINN-DIXIE CHARLOTTE, INC.\nNo. 8224SC1082\n(Filed 18 October 1983)\n1. Evidence \u00a7 49.2\u2014 hypothetical question \u2014 omission of relevant facts not error\nA hypothetical question to plaintiffs medical expert was not improper because of the omission of relevant facts where the facts omitted did not go to the essence of the case so as to present an obviously incomplete and unreliable basis for the expert\u2019s opinion, and where defendants were given an opportunity to cross-examine the witness and supply any additional facts they felt were necessary.\n2. Evidence \u00a7 49.3\u2014 improper hypothetical question \u2014 waiver of objection\nEven if a hypothetical question asked plaintiffs medical expert improperly assumed the answer to the question as part of the statement of facts, defendants waived objection to the question when evidence of the same import was thereafter admitted without objection.\n3. Evidence \u00a7 44\u2014 non-expert opinion testimony \u2014 ability to relax\nIn an action to recover for personal injuries to plaintiff husband and loss of consortium by plaintiff wife, plaintiff wife was properly permitted to give non-expert opinion testimony that \u201cit\u2019s very hard for [plaintiff husband] to relax now, like he used to,\u201d and that \u201csometimes we just can\u2019t have sexual relations because of that,\u201d since plaintiff husband\u2019s ability to relax was an aspect of his health as to which opinion testimony by a non-expert was admissible, and plaintiff wife, by virtue of observation and experience, was well qualified to offer her opinion.\n4. Evidence \u00a7 44\u2014 numbness of plaintiffs face \u2014non-expert opinion testimony\nThe trial court properly permitted plaintiff husband\u2019s former employer to testify that plaintiff husband \u201cwas stiff, he was moving and also in his face when he would talk to me he was talking out of one side of his mouth, because one side of his mouth or face was numb,\u201d since nonexpert testimony as to a person\u2019s physical appearance is permissible if the witness had an opportunity to observe the person, and the testimony in question was merely a shorthand statement as to an observed physical fact.\n5. Damages \u00a7 13.2\u2014 evidence of lost future earnings and promotions\nIn an action to recover for injuries received in an automobile-truck accident, the trial court did not err in admitting evidence of plaintiffs prospects regarding future earnings and promotions with the company which employed him when the collision occurred.\n6. Evidence \u00a7 50.1; Witnesses \u00a7 9\u2014 medical testimony \u2014opening door by cross-examination\nBy cross-examining plaintiffs\u2019 medical expert in several respects relating to injuries to the brain, defendants opened the door to a question propounded by plaintiffs on redirect examination of the witness as to whether an observation of one pupil becoming larger and one smaller in a person who has been in an accident indicates a brain injury.\n7. Damages \u00a7 16.1\u2014 instruction on damages for disfigurement \u2014 sufficiency of evidence\nPlaintiffs evidence showed a spoiling or blemishing of plaintiffs mouth and facial features which justified the trial court\u2019s instruction on damages for disfigurement where plaintiff testified that he suffered numbness to much of his body and a cramping or drawing in his face, and another witness testified that, when plaintiff talked to him, \u201che was talking out of the side of his mouth.\u201d\n8. Damages \u00a7 17.4\u2014 future medical expenses\nThe evidence in a personal injury action supported the trial court\u2019s instruction that the jury could award damages for medical expenses which plaintiff would pay or incur in the future as a proximate result of defendants\u2019 negligence where plaintiff testified that he continued to go to the doctor occasionally to obtain a muscle relaxant prescription; plaintiff also testified that he had averaged seeing the doctor once a month since the collision in question, and that he continued to wear a cervical collar to relieve tension or pain in his neck; both plaintiff and his doctor testified to the possibility of plaintiffs going to a university medical center for further evaluation; and plaintiff introduced statements of account showing various medical and pharmaceutical expenses incurred as a result of the collision, from which the jury could reasonably estimate anticipated expenses.\n9.Damages \u00a7 17.1\u2014 loss of use of part of body \u2014 sufficient evidence of causation\nIn an action to recover for personal injuries received in an automobile-truck collision, there was sufficient evidence of causation, medical and otherwise, to merit the trial court\u2019s instruction that the jury could award damages to plaintiff for loss of use of a part of his body due to numbness and weakness where a medical expert testified that plaintiff had reached maximum improvement; several witnesses testified to plaintiffs physical strength before and after the collision, indicating a diminution therein; plaintiff testified that before the collision he had never suffered from numbness in his body, and that after the collision he had numbness on his left side, in his hand, arm, chest and side, a cramping or drawing in his face, and a pain in his neck: the medical expert testified that on pin prick plaintiff had some decreased sensation on the left side and that plaintiff had a slight weakness in his left hand; and the medical expert also testified that he thought plaintiffs broken neck and other injuries could have been received in the collision.\n10. Appeal and Error \u00a7 50.3; Trial \u00a76\u2014 erroneous instruction on stipulation \u2014 error cured by further instructions\nIn a personal injury action in which defendants stipulated that their negligence had caused the collision in question, the court\u2019s erroneous instruction that defendants had admitted that their negligence was the proximate cause of any injury plaintiff might have received from the accident was cured by the court\u2019s further instructions which clearly informed the jury that defendants had stipulated only to the issue of liability and not that plaintiffs condition at trial was caused by the accident.\n11. Husband and Wife \u00a7 9\u2014 loss of consortium \u2014 sufficiency of evidence\nThe evidence was sufficient to support the trial court\u2019s instructions as to the elements of plaintiff wife\u2019s loss of consortium for which the jury could award damages where plaintiff wife testified that, prior to the collision in question, plaintiff husband was very strong and healthy and did a substantial amount of work around the plaintiffs\u2019 home and farm, and that since the collision she \u201chadn\u2019t seen him do anything\u201d; that prior to the collision he was \u201cslow tempered\u201d but that thereafter he had been \u201cvery irritable and everything seems to just really get on his nerves\u201d; that prior to the collision he was in very good spirits, with a happy and hopeful mental attitude, but that thereafter he was at times very discouraged and listless and did not have the same zest for life; that prior to the collision they got along very well and had a very good relationship, but that thereafter it had been very difficult for him to relax, and they sometimes could not have sexual relations because of that; and that she could not say that she loved him less subsequent to the accident but that \u201cshe loved him differently.\u201d Furthermore, medical testimony that plaintiff husband had reached maximum improvement and was \u201cgoing to be the way he is now\u201d sufficed to justify the court\u2019s instruction on plaintiff wife\u2019s entitlement to compensation for future loss of consortium.\n12. Husband and Wife \u00a7 9\u2014 loss of consortium \u2014denial of directed verdict \u2014 denial of judgment n.o.v.\nThe trial court did not err in denying defendants\u2019 motions for directed verdict and judgment notwithstanding the verdict on the loss of consortium issue where there was substantial evidence of diminution of various aspects of the marital relationship which merited submission of this issue to the jury.\n13. Rules of Civil Procedure \u00a7 59\u2014 denial of motion to set aside verdicts as excessive\nThe trial court did not abuse its discretion in refusing to set aside on grounds of excessiveness a $335,000.00 personal injury verdict for plaintiff husband and a $60,000.00 loss of consortium verdict for plaintiff wife.\nAppeal by defendants from Allen, Judge. Judgment entered 10 June 1982 in Superior Court, AVERY County. Heard in the Court of Appeals 31 August 1983.\nPlaintiffs brought this action for personal injuries to plaintiff-husband, and loss of consortium by plaintiff-wife, arising from the collision of a tractor-trailer, owned by defendant Winn-Dixie and driven by defendant Helms, with an automobile driven by plaintiff-husband. Defendants stipulated that Helms was acting within the course and scope of his employment with Winn-Dixie at the time of the collision, and that his negligence caused the collision. A trial on the issue of damages resulted in a $335,000 verdict for plaintiff-husband and a $60,000 verdict for plaintiff-wife.\nFrom a judgment entered on the verdicts, defendants appeal.\nByrd, Byrd, Ervin, Blanton, Whisnant & McMahon, P.A., by Robert B. Byrd and Sam J. Ervin, IV, for plaintiff appellees.\nMorris, Golding and Phillips, by James N. Golding, for defendant appellants." }, "file_name": "0439-01", "first_page_order": 471, "last_page_order": 486 }