{ "id": 8631117, "name": "E. H. KEPLEY and GLADYS KEPLEY, by Next Friend, GRADY GOODE, v. A. B. C. KIRK, Proprietor of the Kirk Auto Service, and A. B. C. KIRK", "name_abbreviation": "Kepley ex rel. Goode v. Kirk", "decision_date": "1926-05-05", "docket_number": "", "first_page": "690", "last_page": "696", "citations": [ { "type": "official", "cite": "191 N.C. 690" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "189 N. C., 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653618 ], "opinion_index": 0, "case_paths": [ "/nc/189/0137-01" ] }, { "cite": "190 N. C., 431", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "190 N. C., 197", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598297 ], "opinion_index": 0, "case_paths": [ "/nc/190/0197-01" ] }, { "cite": "24 L. Ed., 259", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "95 U. S., 117", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3384175 ], "opinion_index": 0, "case_paths": [ "/us/95/0117-01" ] }, { "cite": "110 N. W., 809", "category": "reporters:state_regional", "reporter": "N.W.", "pin_cites": [ { "page": "818" } ], "opinion_index": 0 }, { "cite": "112 N. C., 901", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652273 ], "opinion_index": 0, "case_paths": [ "/nc/112/0901-01" ] }, { "cite": "72 Vt., 264", "category": "reporters:state", "reporter": "Vt.", "opinion_index": 0 }, { "cite": "175 N. C., 713", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "148 N. C., 37", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269143 ], "weight": 2, "pin_cites": [ { "page": "p. 41" } ], "opinion_index": 0, "case_paths": [ "/nc/148/0037-01" ] } ], "analysis": { "cardinality": 737, "char_count": 15395, "ocr_confidence": 0.46, "pagerank": { "raw": 1.6090099691747242e-07, "percentile": 0.6852519200926386 }, "sha256": "8711ab87e68f5d1d73c3b96b0212954ed4682517ac708ef973abef24b197d527", "simhash": "1:ee6feef6953887da", "word_count": 2684 }, "last_updated": "2023-07-14T21:52:36.568148+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "E. H. KEPLEY and GLADYS KEPLEY, by Next Friend, GRADY GOODE, v. A. B. C. KIRK, Proprietor of the Kirk Auto Service, and A. B. C. KIRK." ], "opinions": [ { "text": "Clarkson, J.\nA map was made by a civil engineer about a year after tbe collision, showing tbe Southern Railroad underpass, with width of tbe entire road \u2014 tbe paved and dirt portions and tbe width of each\u2014 and alleged place of collision.\nThere was conflicting testimony as to tbe condition of tbe road at tbe place and time of tbe collision. Tbe engineer who made tbe map was not familiar with tbe actual conditions at tbe time of tbe collision, but there Avas testimony on tbe part of tbe plaintiff, E. H. Kepley, that be helped tbe engineer make tbe measurements, and that tbe map was correct and represented tbe true condition of tbe road at tbe time of tbe collision. Defendant contends that tbe map was incompetent and prejudicial. As substantive evidence Ave think tbe defendant\u2019s contention correct, but, both on direct and cross-examination of tbe witnesses, tbe court below did not allow tbe map to be used as substantive evidence, but repeatedly stated that it was used for tbe purpose of illustrating tbe evidence and a repetition was: \u201cThis map is not admitted as evidence. It is admitted for tbe purpose of trying to illustrate tbe condition at that time.\u201d\nThe map, under the facts and circumstances, was competent \u201cfor the purpose of enabling the witness to explain his-testimony and enabling the jury to understand it.\u201d Britt v. R. R., 148 N. C., 37; S. v. Jones, 175 N. C., 713; S. v. Mathews, ante, 378; 22 C. J., p. 910.\nUnder the decisions of this State and elsewhere, we cannot hold that the map was incompetent or prejudicial to defendant, being used only to illustrate and explain the testimony of witnesses. The map must be correct and accurate in order that it may be admissible, but this does not require strict mathematical accuracy; the lack of accuracy goes to the weight and not the admissibility.\n\"Wigmore on Evidence (2 ed.), sec. 794, p. 100, says: \u201cA witness thus using the map or photograph as representing his knowledge need not be the maker of it. He affirms it to represent his observation; and that is the essential element. Even the maker could not use it without such a guarantee; and it may equally represent others\u2019 observation as well as his own. Indeed, if it is a correct representation, it will naturally be equally representative for all observers.\u201d\nIn Hyde v. Town of Swanton, 72 Vt., 264, a civil engineer was introduced as a witness \u201cand produced a plan made by him, which he said was an accurate plan of the location where the accident happened. He did not profess to know anything about the situation and condition of the point in question at the time of the accident. Such knowledge on his part was not necessary. If the other testimony in the case tended to show that the situation was as shown upon the plan, it was admissible.\u201d\nIt was in evidence that the hard surfaced road was about 16 feet wide and laid on the east side of the public highway, and the balance of the road, 23 feet, was dirt, on the west side, except on the east side of the road between the paved road and the ditch- there was about 5 feet of dirt road. At the time of the collision plaintiffs were going north in a Nash automobile driven by E. H. Kepley, and defendant\u2019s bus was coming south driven by Walter H. Kirk. There was evidence on the part of defendant that there was a water main put in the dirt part of the road on the west side, and the road was dug up about 4 feet deep and 18 inches wide, to lay the pipe. It left the dirt portion of the road in bad condition, but the evidence in thi\u00a7 regard was conflicting. Plaintiffs\u2019 evidence was that the dirt road was in good condition. It was in evidence that the paved road, about 16 feet wide, was sufficient for the bus and automobile to pass in safety if each was driven to the right of the center of the paved road. The collision occurred 22 November, 1924, about 4:50 p.m. It was in evidence that it rained that day and the dirt road would become slick and muddy when it rained.\nThe defendant excepted and assigned error to the following testimony of plaintiff\u2019s witness, M. T. Skeen: \u201cThe ditch work was started in March and completed in May. That would give it about six months to settle. Q. Any trouble about that class of soil settling in six months where it is properly put in? Answer: No, sir. With that type of soil, as I knew it, and where the work was done six months under the kind of superintendent Mr. Foster was, that road could be traveled over.\u201d If this testimony was incompetent, it was not material. The main evidence for plaintiff as to the collision was what he testified to that the front wheels of his car was right at the edge of the hard surface and the dirt road on the right going north at the time of the collision. The hard surface being about 16 feet wide, this would put him on the right of the center of the hard surfaced road. He testified that' defendant coming south had about 30 to 31 feet of the road to his (plaintiff\u2019s) left from the point of collision. This included part of the hard surfaced road. Plaintiff only had five feet of the dirt road to the right going north. Plaintiff was driving to the right of the center of the paved strip in the highway, keeping close to the outer edge of the hard surface. From plaintiff\u2019s testimony, defendant was on the wrong side of the hard-surfaced road when the collision occurred, and therefore the condition of the dirt road was not material.\nWe can see no objection to the evidence. We think it competent. The witness knew the road and was familiar with the conditions and could state the facts from personal observation.\n\u201cWhere an inference is so usual, natural, or instinctive as to accord with general experience, its statement is received as substantially one of a fact \u2014 part of the common stock of knowledge.\u201d 22 C. J., p. 530, citing numerous North Carolina cases.\nIn Britt v. R. R., supra, p. 41, it is said: \u201c5 Encyc. Ev., 654, summarizes the decisions thus:\u201cThe exception to the general rule that witnesses cannot give opinions is not confined to the evidence of experts testifying on subjects requiring special knowledge, skill or learning, but it includes the evidence of common observers testifying the results of their observations made at the time in regard to common appearances, facts and conditions which cannot be reproduced and made palpable to a jury,\u2019 citing, among other cases, S. v. Edwards, 112 N. C., 901. This is a clear statement of a well-settled principle, and is a common-sense restriction which keeps the wise general rule as to \u2018opinion\u2019 and \u2018expert\u2019 evidence from degenerating into absurdity.\u201d\nProm a careful reading of the charge, we think the court below applied the law to the facts. The court below first gave clearly the contentions of the parties; set forth'the issues; defined the law of the road and negligence; correctly charged as to the burden of proof on the issues and the weight to be given the evidence; clearly stated the facts which would make plaintiff guilty of contributory negligence, and charged that if plaintiff did any act of negligence as defined, which caused the injury or without which the injury would not have occurred, the jury should answer the third issue, Yes. This issue was': \u201cDid the plaintiff, E. H. Kepley, by his own negligence, contribute to his injury as alleged in the answer?\u201d The court left out \u201cproximate cause,\u201d and the charge was more favorable than defendant was entitled to, as this contributory negligence must be the proximate cause of the injury.. On the other hand, in the charge as to the alleged negligence of the defendant, the court several times charged that this negligence must be the proximate and direct cause of the injury. Although the charge is not full or fullsome, we cannot, on the whole, say that there is prejudicial error.\nIt was said in Ordegard v. North Wisconsin Lumber Co., 110 N. W., 809, 818, 130 Wis., at p. 685: In an action for injuries to a servant, an instruction that \u201cproximate\u201d cause meant \u201cthe immediate, direct, actual, natural, efficient, and real cause,\u201d was no ground for reversal of a judgment in favor of plaintiff, as it placed a heavier burden on him than the correct rule.\nThe decisions of this State have approved the language of Mr. Justice Strong in Ins. Co. v. Boon, 95 U. S., 117: \u201cThe proximate cause is the dominant cause, not the one which is incidental to that cause, its mere instrument, though the latter may be nearest in place and time to the loss. In R. R. v. Kellogg (ante, 256), we said, in considering what is the proximate and what the remote cause of an injury, \u2018The inquiry must always be whether there was any intermediate cause disconnected from the primary fault, and self-operating, which produced the injury.\u2019 \u201d\nIn Milwaukee and St. Paul Ry. Co. v. Kellogg, 94 U. S., p. 470 (24 L. Ed., 259), written by the same Justice, it is said: \u201cThe true rule is, that what is the proximate' cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it. The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied to the other end, that force being the proximate cause of the movement, or in the oft cited case of the squib thrown in the market place. Scott v. Shepherd (Squib case), 2 W. Bl., 892.\u201d Taylor v. Lumber Co., 173 N. C., at p. 116; Graham v. City of Charlotte, 186 N. C., p. 667; Hinnant v. Power Co., 187 N. C., p. 295; Whitehead v. Telephone Co., 190 N. C., 197; Paderick v. Lumber Co., ibid., p. 312.\n\u201cNow, as to the fourth issue \u2014 Did the plaintiff, Mrs. Gladys Kepley, by her own negligence, contribute to her injuries as alleged in the answer ? \u2014 the court charges you, gentlemen, that there is no evidence in this case of contributory negligence upon the part of the plaintiff, Mrs. Gladys Kepley, and it would be your duty to answer that issue, No.\u201d Mrs. Gladys Kepley was riding with her husband, but had no control over the automobile. Albritton v. Hill, 190 N. C., 431; Hanes v. Utilities Co., ante, 13.\nThe case is not a complicated one as to the law or facts. It was an action for actionable negligence. A collision on the public highway, conflicting evidence as to the right of the road. On the whole record, we cannot find any reversible or prejudicial error. Davis v. Long, 189 N. C., 137; Fowler v. Fibre Co., ante, 42.\nThe statute, C. S., 564, requires the court below: \u201cHe shall state in a plain and correct manner the evidence given in the case and declare and explain the law arising therein.\u201d We have heard the able argument of defendant\u2019s counsel, and gone carefully over the well prepared brief, and we think the law has been substantially complied with. For the reasons given, there is\nNo error.", "type": "majority", "author": "Clarkson, J." } ], "attorneys": [ "T. L. Kirhpatriclc, J. K. McLain and H. L. Taylor for plaintiffs.", "Bridges, Orr & Vreeland for defendant." ], "corrections": "", "head_matter": "E. H. KEPLEY and GLADYS KEPLEY, by Next Friend, GRADY GOODE, v. A. B. C. KIRK, Proprietor of the Kirk Auto Service, and A. B. C. KIRK.\n(Filed 5 May, 1926.)\n1. Evidence \u2014 Maps\u2014Explanation\u2014Witness\u2014Corroboration\u2014Substantive Evidence.\nA map of a public road and surroundings made by a civil engineer showing the conditions under which the collision occurred in a negligence action, is competent when testified to by another witness as being a correct representation of the place at the time of the occurrence, for the purpose of other competent witnesses explaining their testimony, though not as corroborative evidence.\n' 3. Automobiles \u2014 Collisions\u2014Negligence\u2014Highways\u2014 Evidence \u2014 Immaterial \u2014 Appeal and Error.\nWhere the evidence in a personal injury action for defendant\u2019s alleged negligence in driving a passenger coach on a public highway, causing a collision with an automobile is directed to the question as to whether the defendant should have driven the coach on the right side of a hard-surface highway and given plaintiff room to pass, evidence as to the condition of a dirt road near by, a part of the highway, is immaterial to the issue.\n3. Evidence \u2014 Opinions Upon Collective Eacts \u2014 Common Knowledge \u2014 . Ordinary Observation \u2014 Expert Witnesses.\nTestimony of a witness as to his opinion arising from ordinary observation of collective facts coming within ordinary experience, is not objectionable, and does not require the qualification of the witness as an expert.\n4. Negligence \u2014 Contributory Negligence \u2014 Instructions\u2014Appeal and Error \u2014Prejudice.\nThe defendant cannot be prejudiced by an instruction under the issue of contributory negligence that places a greater burden upon the plaintiff than the law requires.\n5. Negligence \u2014 Proximate Cause.\nWhere to recover damages in an action it is necessary to show that it was proximately caused by the negligence of a party, it is not required that it was proximate as to time or place, but that the negligence was the sole and efficient cause of a negligent act that in its sequence ultimately and proximately produced the injury the subject of the inquiry.\nAppeal by defendant from B. B. Bedwine, Emergency Judge, at November Term, 1925, of MecKleNbueg-. No error.\nCivil action for damages brought by E. H. Kepley and Gladys Kep-ley, by next friend, Grady Goode, against A. B. 0. Kirk. The actions were consolidated by consent.\nThe plaintiffs allege actionable negligence against A. B. C. Kirk, who was the owner of the Kirk Auto Service, and ran a bus line between the cities of Charlotte, Concord and Salisbury, transporting passengers. Walter H. Kirk was the driver of the bus at the time of the collision.\nThe injury to plaintiffs occurred on the evening of November 22, 1924, on the Charlotte-Concord-Salisbury road, just beyond the Southern railroad underpass on North Tryon Street in the residential section of the city of Charlotte. Defendant denies any negligence and pleads contributory negligence on part of plaintiffs.\nDefendant also alleges actionable negligence against .plaintiffs and claims damages to the bus.\nPlaintiffs\u2019 replication denies the allegations of defendant\u2019s cross-action.\nTbe issues submitted to tbe jury aud tbeir answers thereto were as follows:\n\u201c1. Was tbe plaintiff, E. H. Kepley, injured by tbe negligence of tbe defendant, as alleged in tbe complaint? Answer: Yes.\n\u201c2. Was tbe plaintiff, Mrs. Gladys Kepley, injured by tbe negligence of tbe defendant, as alleged in tbe complaint? Answer: Yes.\n\u201c3. Did tbe plaintiff, E. H. Kepley, by bis own negligence, contribute to bis injury, as alleged in tbe answer ? Answer: No.\n\u201c4. Did tbe plaintiff, Mrs. Gladys Kepley, by ber own negligence, contribute to ber injury, as alleged in tbe answer? Answer: No.\n\u201c5. Wbat damages, if any, is tbe plaintiff, E. H. Kepley, entitled to recover? Answer: $10,000.\n\u201c6. Wbat damages, if any, is tbe plaintiff, Mrs. Gladys Kepley, entitled to recover ? Answer: $5,000.\n\u201cY. Wbat damage, if any, is tbe plaintiff, E. H. Kepley, entitled to recover by reason of injury to bis car ? Answer: $800.\n\u201c8. 'Wbat damage, if any, is defendant entitled to recover of tbe plaintiff, E. H. Kepley, by reason of injury sustained to its bus? Answer:\nJudgment was rendered on tbe verdict. Defendant excepted and assigned numerous errors and appealed to tbe Supreme Court. Tbe material ones will be considered in tbe opinion.\nT. L. Kirhpatriclc, J. K. McLain and H. L. Taylor for plaintiffs.\nBridges, Orr & Vreeland for defendant." }, "file_name": "0690-01", "first_page_order": 770, "last_page_order": 776 }