{ "id": 8619055, "name": "CAROLINE DEMPSTER v. JOHN FITE", "name_abbreviation": "Dempster v. Fite", "decision_date": "1932-12-14", "docket_number": "", "first_page": "697", "last_page": "708", "citations": [ { "type": "official", "cite": "203 N.C. 697" } ], "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": "168 N. C., 611", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661890 ], "opinion_index": 0, "case_paths": [ "/nc/168/0611-01" ] }, { "cite": "146 N. C., 125", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270361 ], "opinion_index": 0, "case_paths": [ "/nc/146/0125-01" ] }, { "cite": "133 N. C., 554", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "195 N. C., 654", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631274 ], "opinion_index": 0, "case_paths": [ "/nc/195/0654-01" ] }, { "cite": "188 N. C., 222", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653571 ], "opinion_index": 0, "case_paths": [ "/nc/188/0222-01" ] }, { "cite": "188 N. C., 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653836 ], "opinion_index": 0, "case_paths": [ "/nc/188/0366-01" ] }, { "cite": "186 N. C., 475", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653927 ], "opinion_index": 0, "case_paths": [ "/nc/186/0475-01" ] }, { "cite": "133 N. C., 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658538 ], "opinion_index": 0, "case_paths": [ "/nc/133/0550-01" ] } ], "analysis": { "cardinality": 1137, "char_count": 32352, "ocr_confidence": 0.459, "pagerank": { "raw": 1.4062029612930616e-07, "percentile": 0.645715059063289 }, "sha256": "3f42403d531417de08b173ab63c30a6c03cda912a919e8bd4959b4cd7c161b0a", "simhash": "1:52e6b9c8721fa5c0", "word_count": 5837 }, "last_updated": "2023-07-14T19:49:40.426370+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CAROLINE DEMPSTER v. JOHN FITE." ], "opinions": [ { "text": "Clarkson, J.\nThere can be no question that the evidence was abundant to have been submitted to the jury on the question o\u00a3 negligence and damage. In fact, there are no exceptions or assignments of error as to the charge of the court below in defendant\u2019s brief. Part Rule 28 (200 N. C., at p. 831), is as follows: \u201cExceptions in the record not set out in appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him.\u201d\nPlaintiff testified that on 4 July, 1930, she had received an injury in an automobile collision and that her pelvic bones had been broken in three places. She went to work after this injury, on 15 November, 1930, and worked steadily thereafter until the collision and injury for which this action was instituted.\nOn the question of injury, Dr. J. Rush Shull, a witness for plaintiff, an expert X-ray specialist, who took X-ray pictures of plaintiff many times and on different occasions, testified in part: \u201cWe found in both examinations \u2014 30 and 31 July \u2014 the compression fracture of the bodies of the sixth and seventh thoracic vertebrae.\u201d On cross-examination: \"This ivas the only place she complained of \u2014 I did not take an X-ray of the pelvic region. ... I am confident that there has been a fracture because the vertebrae has come closer together in those two places. Ordinarily the X-ray takes nothing but the bony tissue \u2014 does not take the nerves.\u201d\nDr. Alonzo Myers, an expert bone surgeon, witness for plaintiff, testified in part: \u201cAll of these findings with history, indicated to me that she was having severe pain in her back. ... I felt she must have some injury in the vertebrae and warned her to go to the hospital and have an X-ray made. ... In a few days I got her there and had X-ray made, it showed that she had a fracture of the seventh and eighth dorsal vertebrae. I applied plaster paris cast from her waist to axilla in order to take the motion out of the back. I have kept her under observation since then. Seen her from time to time; had her rechecked by X-ray about every two months. ... In my opinion, based upon experience and study, to mobilize or keep it straight with a cast for a period of a year, and often longer, even though the symptoms have disappeared you will be afraid of reoccurrence, which will make it worse. She has not been able to work since the injury. She will not be able to do anything which will require the use of her spine \u2014 certainly not now.\u201d\nThe defendant introduced Dr. C. C. Phillips, an expert, who testified: \u201cThe condition of the dorsal spine is the same as at previous examina-ti-on which we made on 24 September, 1931. It is my opinion that the condition of the vertebras is normal in this individual, and not a result of injury.\u201d Also Dr. O. L. Miller, an expert in orthopedic surgery, who testified: \u201cNo evidence of fracture there, no evidence that there has ever been any fracture.\u201d Also Dr. Stephen Gaul, expert, testified: \u201cI have looked at these before and seen no fracture, particularly in the seventh and eighth dorsal vertebrae there is no fracture. ... I don\u2019t see anything that would disturb the functional use of the spine in its ordinary movements. I don\u2019t see anything that would cause pain.\u201d\nThere was no objection on either side to the above opinion evidence. The plaintiff\u2019s expert testifying that there was a fracture of her spine in two of the vetebrae. Defendant\u2019s experts testifying \u201cthe condition of the vertebrae is normal, in this individual and not a result of injury\u201d\u2014 \u201cno evidence that there has ever been any fracture\u201d \u2014 \u201cthere is no fracture.\u201d\nThe pelvic bones of plaintiff, which had been broken more than a year before in a collision, before the collision for which this action is brought, the record discloses had gotten well and plaintiff had gone to work. Dr. Myers testified \u201cShe had no indication or symptom of pain in her back then, she returned to work after that.\u201d From the evidence we can see no causal relation between the pelvic bone injury and the present alleged injury.\nDefendant contends that three points are involved: (1) Hypothetical question to medical expert by plaintiff without placing burden on plaintiff to show by greater weight of evidence, the assumed state of facts. (2) Allowing medical expert to testify that certain condition was caused by the accident. (3) Form of hypothetical question propounded to medical expert.\nOn the first aspect defendant contends: \u201cThe hypothetical questions propounded by the plaintiff are fatally defective in that they were not based on the hypothesis that the jury should find the facts to be true by the greater weight of the evidence. The burden was on the plaintiff and she must carry the burden continuously throughout the trial.\u201d The defendant cites no authority as to the greater weight of the evidence necessary in the hypothetical questions.\nOn the two issues submitted to the jury in the action, the court below charged correctly, as follows: \u201cThe first issue is: \u2018\u00a5as the plaintiff injured by reason of negligence of the defendant, as alleged in the complaint?\u2019 The burden of that issue is upon the plaintiff. It is en-cumbent upon plaintiff to satisfy you by the greater weight of the evidence, that is evidence which outweighs or preponderates all other evidence in this case; whether introduced by plaintiff or defendant, that plaintiff was injured by reason of negligence of defendant as alleged in the complaint. Second issue: 'What damages, if any, is the plaintiff entitled to recover of defendant ?\u2019 The burden of that issue is upon plaintiff to satisfy you by the greater weight of the evidence, as to what damage she is entitled to recover.\u201d\nIn Parrish v. R. R., 146 N. C., at p. 126, the hypothetical question begins practically like the ones objected to in the present action: \u201cIf the jury find the facts to be from the evidence, that the plaintiff was injured by falling back against the arm of a seat in the train,\u201d etc. The Court found no error as to the form of the hypothetical question in the Parrish case, supra.\nAs to the second aspect \u201cAllowing medical expert to testify that certain condition was caused by the accident\u201d: All the evidence, other than that of the defendant\u2019s expert witnesses, indicated that the impact was such as to cause injury to plaintiff and her condition thereafter. The general principle in regard to expert testimony is laid down in the Parrish case, supra, at pp. 127-8: \u201cWe cannot agree with the learned counsel of the defendant that this case bears any resemblance to Summerlin v. R. R., 133 N. C., 550. In that case the questions excluded by the court were so framed as to require the witnesses to express an opinion as to the existence of a fact which was controverted, and it was there said by the Court that this was not the proper form for the question to take, but that the expert\u2019s opinion should be founded upon a hypothetical question containing a statement of facts which the jury might find from the evidence, and supposing, of course, that they will find them to be as stated in the question. (Italics ours.) . . . (p. 128.) The question was not so put to the witness \u2018as to require him to draw a conclusion of fact nor to pass upon the effect of the evidence in proving controverted facts,\u2019 but merely to express his opinion upon the facts stated in the question, leaving them to be found exclusively by the jury.\u201d Hill v. R. R., 186 N. C., 475.\nIn the present case, following the precedent in the Parrish case, supra, the hypothetical questions were premised on the jury finding the facts to be from the evidence. Dr. Lewis, in the Parrish case, supra, answered: \u201cIn my opinion, the kidney was dislocated by the fall, and the dislocation is permanent, and the plaintiff will be disabled for life, unless he has the kidney removed by an operation.\u201d\nIn the present action Dr. Shull, an expert witness for plaintiff, testified on cross-examination by defendant: \u201cI am confident that there has been a fracture because the vertebra have come closer together in those two places. Ordinarily, the N-ray takes nothing but the bony tissue\u2014 does not take the nerves.\u201d On redirect examination, the proper hypothetical question was propounded by plaintiff, as follows: \u201cIf the jury should find from the evidence that this young lady on 25 July, 1931, was riding in the rear seat of an automobile on \"Wilkinson Boulevard, in Mecklenburg County, and should further find that an automobile traveling at the rate of sixty or sixty-five miles an hour should strike the rear of the car in which she was sitting, breaking the seat in two and throwing plaintiff forward, and if the jury should further find that she immediately complained of her back and should further find in a few minutes thereafter she fainted, and if they should further find that she was taken to the hospital and that since that time she has been unable to perform manual labor, and has been in a plaster cast for the last eight or nine months, have you an opinion, satisfactory to yourself as to what caused the condition you find in the vertebras as disclosed by the X-ray pictures? Answer: Yes, I have an opinion. Q. What is it ? Answer: The accident caused the injury.\u201d Lynch v. Mfg. Co., 167 N. C., at p. 100; Riggs v. R. R., 188 N. C., 366; Shaw v. Handle Co., 188 N. C., 222; Buckner v. R. R., 195 N. C., 654; S. v. Fox, 197 N. C., at p. 486.\nIt must be noted that all the evidence, except that of defendant\u2019s expert witnesses, was to the effect that plaintiff was to some extent injured in the collision. The hypothetical questions were not addressed to the issue of negligence, but on the issue as to the extent of the injury. The answer of the doctor \u201cThe accident caused the injury.\u201d Taking the question and answer together, on the question of damages, we do not think the answer impinged the jury rule to such an extent that it should be held for prejudicial or reversible error.\nIn the Parrish case, supra, the cause and extent of the injury was stated and this was not held to be error. We can see no error in the question propounded to the expert Dr. Shull, and his answer thereto: \u201cYes, I have an opinion from my examinations and X-ray as to whether this girl\u2019s injury is permanent. Q. What is that? Answer: It is total and permanent.\u201d *\nIn Martin v. Hanes Co., 189 N. C., at p. 646, Adams, J., we find: \u201cThese cases enunciate the principle that, while a medical expert may not express an opinion as a controverted fact, he may, upon the assumption that the jury shall find certain facts to be as recited in a hypothetical question, express his scientific opinion as to the probable effect of such facts or conditions.\u201d\nOn the third aspect: \u201cForm of hypothetical question propounded to medical expert\u201d \u2014 The form and answers to the hypothetical questions may not be as technical as perhaps they should be. In N. C. Handbook on Evidence (Lockhart) 2d ed., p. 240, part sec. 203, the following observations are made: \u201cThe general rule is that opinion evidence is inadmissible, and the triers of a matter in dispute \u2014 the judge or the jury as the case may be \u2014 -draw their conclusions from facts testified to before them, and not from opinions expressed by others. There are three classes of exceptions to the above rule. The court will admit (1) opinions of experts, (2) opinions on the question of identity, and (3) opinions which, from necessity, must be received. . . . (Sec. 204.) An expert may express an opinion, hut he must base his opinion upon facts within his own knowledge, or upon the hypothesis of the finding by the jury of certain facts recited in the hypothetical question. . . . (Sec. 209.) As pointed out, the exceptions to the opinion rule as based upon the justification that the ends of justice may be more readily met by assisting the jury with the opinion testimony. Assuming that the requirement of relevancy is taken care of, the court is then confronted with two queries: (1) Is the province of the jury invaded? (2) Will the opinion materially assist the jury ? In the application of the queries to the particular case, while the courts have attributed various reasons for the exclusion or admission of the testimony, it is submitted that no rules, nor formulas, can be satisfactorily deducted from the results reached.\u201d\nIn Cochran v. Mills Co., 169 N. C., at p. 64, Walker, J., said: \u201cThe questions to the expert were properly framed and were supported by evidence. Summerlin v. R. R., 133 N. C., 554; Parrish v. R. R., 146 N. C., 125; Shaw v. Public-Service Corp. (168 N. C., 611), supra. Besides, it' appears that upon striking a general balance the advantage of all the questions and answers was largely in favor of defendant. If there has been error, no harm would have resulted to defendant.\u201d\nIn the present action plaintiff had two experts and defendant three, testifying in regard to the injury. The defendant's three experts testified there was no injury, the plaintiff\u2019s that there was. On all the facts and circumstances of this case; conceding, but not deciding there was error, we cannot hold it as inejudicial or reversible. In the legal battle as to opinion evidence between the able counsel in this action, it seems as if \u201chonors were easy.\u201d The questions of fact were decided by the jury in favor of the plaintiff. We find in law\nNo error.", "type": "majority", "author": "Clarkson, J." } ], "attorneys": [ "J. D. McCall and A. M. Butter for plaintiff.", "L. Lawrence Jones for defendant." ], "corrections": "", "head_matter": "CAROLINE DEMPSTER v. JOHN FITE.\n(Filed 14 December, 1932.)\n1. Appeal and Error G b \u2014 Exceptions not set out in brief are deemed abandoned.\nExceptions not set out in appellant\u2019s brief, or in support of wbicb no reason is stated or authority cited, are deemed abandoned.\n2. Damages O b \u2014 Evidence held not to show causal connection between prior injury and injury in suit.\nIn an action to recover damages for a negligent personal injury the plaintiff testified that prior to the injury in suit she bad been injured in another accident in which her pelvic bone had been broken in three places, but there was evidence that after the first injury she had returned to work and that the injury had gotten well, that upon returning to work she had no symptom of pain in her back, that she continued to work until the date of the injury in suit, some eight months later, that immediately after the injury in suit she complained of pain in her back, together with medical expert testimony based on X-ray pictures taken after the injury in suit that two vertebrae of plaintiff\u2019s backbone were fractured and that the injury resulted from the accident in suit, that after the injury in suit the plaintiff had not suffered pain in the region of the former injury, is held, not to establish a causal connection between the prior injury and the injury in suit.\n3. Evidence K d \u2014 Facts assumed in hypothetical question need not be stated upon finding by jury from \u201cgreater weight\u201d of evidence.\nA hypothetical question' asked the plaintiff\u2019s medical expert witness upon the assumption that the jury find from the evidence the facts to be as therein stated will not be held for error for its failure to state the burden of proof on the facts assumed, and the defendant\u2019s contention that the question should have been stated \u201cif the jury should find from the greater weight of the evidence, that . . . and not \u201cif the jury should find from the evidence, that ...\u201d cannot be sustained, the court having correctly stated the burden of proof on the issue in his charge to the jury.\n4. Evidence K b \u2014 Testimony of expert that injury resulted from accident held not reversible error under* facts of this case.\nWhere in a personal injury action all the nonexpert evidence is to the effect that the plaintiff was injured to some extent by the accident in question, and the plaintiff offers a medical expert witness who had taken X-ray pictures of the plaintiff\u2019s spine who testified on cross-examination that two vertebrae had been fractured, the testimony of the witness on redirect examination that in his opinion the accident caused the injury to the vertebrae will not be held for prejudicial error as invading the province of the jury when the testimony is based upon the expert\u2019s examination of the X-ray picture and a proper hypothetical question assuming the facts as contended by the plaintiff, the question being addressed to the issue of damages and not to the issue of negligence, and the question not calling for an opinion as to the existence of a controverted fact, and such expert is also competent to testify as to whether the injury suffered by the plaintiff was, in his opinion permanent.\n5. Evidence K d \u2014 Form of hypothetical question in this case held not to constitute reversible error.\nThe testimony of an expert witness must be based upon facts within his knowledge or upon the assumption that the jury shall find certain facts to be as recited in a hypothetical question, but in this case the form of the hypothetical questions propounded to the plaintiff\u2019s expert witnesses is not held for reversible error under the facts of this case although the form of the questions was not, perhaps, technically correct, there being two expert witnesses for the plaintiff testifying that two vertebrae of the plaintiff's backbone had been fractured, and three expert witnesses for the defendant testifying to the contrary, and it appearing that no prejudice had resulted to the defendant from the form of the questions excepted to.\nAppeal by defendant from MacRae, Special Judge, and a jury, at April Term, 1932, of MeokleNbubg.\nNo error.\nThis was an action for actionable negligence, brought by plaintiff against defendant alleging damage. Plaintiff was a telephone operator in the employ of the Southern Bell Telephone and Telegraph Company, and worked until 9 o\u2019clock the night of her injury \u2014 25 July, 1931. After working hours, she and a lady friend went to Gastonia, N. 0., with two young men, over the Wilkinson Boulevard. On the return trip she was riding in the rear seat of the automobile. Plaintiff testified, in part: \u201cOur car was struck in the rear and was torn completely up. It knocked it a long distance down the highway. The car that hit us, when I got out, was jammed into the back of our car. They were locked to-getber. We were struck right in the middle of the back seat. I was knocked against tbe front seat almost unconscious. Inez McLendon helped me out of the car. ... I went to bed. I went to the hospital a week afterwards. Dr. Alonzo Myers put me there. I stayed in the hospital two weeks. He put me in a plaster cast the first day I went to see him. I have the cast on now. I have been wearing the cast for nine months. After I left the hospital I went to my apartment on East Fifth Street and stayed there about two months or a little oyer. I was unable to be up and have not worked since. I tried to do a little house work, but when I do I get completely worn out. I have to go to bed and rest. I was in bed two months at home and two weeks in the hospital and after that I stayed in bed the best part of the day. . . . My back pains me a lot. I was not hurt in any other part of the body but I am nervous. I was terribly bruised on the night of the accident. My arms were black and blue all over. The seat I was in was pushed up to the front and the front seat broken out. I am twenty-two years old. . . . -The accident happened a little after twelve. . . . We did not stop any place \u2014 from the time we left home until the accident happened except to change drivers. We were running about twenty-five or thirty miles an hour when we were struck. It must have knocked us about fifty yards. His car was hooked up with ours. I spoke to Mr. Fite when I got out and then I collapsed after he said he was going to do all the damage he could. He deliberately backed his car back and came forward and hit our car again. I fainted but in a few minutes I came to. They pushed Mr. Fite\u2019s car back from our car to clear the road. Mr. Fite said 'I am going to complete this thing.\u2019 . . . I live with my parents in Spartanburg, the first I told them of this accident was when I was taken to the hospital. My mother came but my father is an invalid.\u201d On cross-examination, the plaintiff testified that she had filed a complaint for injury by collision, which occurred 4 July, 1930, whereby her pelvic bones had been broken in three places, that she had been placed in and remained in a plaster cast for a period of four months. Plaintiff, after defendant\u2019s evidence was introduced, was recalled and testified: \u201cI remember the date of my first injury when the pelvic bones were cracked \u2014 4 July, 1930. I went to work after that injury about 15 November. I worked steadily after that until the night of this accident.\u201d\nThe ear plaintiff was riding in, when hit from the rear, was on the right-hand side, in compliance with the law of the road. No obstruction to prevent anyone in the rear from seeing the ear plaintiff was riding in. It was a straight road, and was a clear night. It was a hard lick, the ear plaintiff was in was knocked 50 to 60 feet. Defendant denied negligence, and contended that tbe rear light of the car in which plaintiff was riding was not burning.\nDennis Deal, witness for plaintiff, testified in part: \u201cThe center of his (Fite\u2019s) radiator hit the spare tire on my car, it was a steel wheel on the back of my car. His car was jammed in the back of my car. . . . Mr. Eite got in his car to drive it out of the road and ran into the back end of us again. Our car was torn up as much as possibly could be done to it. The rear seat was broken in two. The rear seat was knocked part of the way towards the front of the car. The front seats were broken off too. Mr. Fite\u2019s car hit my spare wheel and tore it up. . . . Mr. Eite told me everything would be all right\u2014 that he would fix everything up and not let the sheriff lock him up.\u201d L. N. Warren, witness for plaintiff, testified in part; speaking of defendant: \u201cI could not say who passed me before I got to where the wreck was but he was driving a yellow Ford cabriolet. The next time I saw it, it was in back of Mr. Deal\u2019s car. I will say it must have been doing sixty or sixty-five miles an hour. . . . The road was straight there. I found Mr. Fite\u2019s car in the rear end of Mr. Deal\u2019s car, it was fastened to the car. They were both in bad condition. The seats of Deal\u2019s car on the inside looked like dynamite had turned loose inside. The front seat was broken off. . . . Miss Dempster said she would rather come on to Charlotte and have her own doctor. While we were coming home, every time we would hit a little bump, she would holler with her back until she came to herself. She was unconscious until we got to Relmont. We went to the doctor\u2019s house and talked with him and she decided to come on home. We came from Belmont to Charlotte. We took her to her apartment on Fifth Street.\u201d\nA. D. Nixon, witness for plaintiff, testified in part: \u201cBefore this we walked across the road. Mr. Deal called the deputy sheriff off and they were talking and I heard Mr. Fite say \u2018Don\u2019t have me arrested, Dennis. I understand it was my fault, but I will fix everything up.\u2019 \u201d\nSam T. Reid, witness for plaintiff, testified in part: \u201cMy home is in Gastonia \u2014 I am engaged in the automobile repair business. ... I repaired the two automobiles but did not tow them in. . . . The body of the Deal car was damaged a great deal and the front of the Fite car was damaged a great deal. The rear panel of the Deal car caved in. Spare tire was shoved through the rear panel for a good ways. Far enough to break the back of the back seat in two, the woodwork was broken in half. The front seats were broken off, the rear part of the frame was bent. The radiator, hood, and front axle and frame of the Fite car was damaged. The radiator, the frame, the hood and the front axle of the Fite car were damaged, the radiator was pushed back into the fan. Mr. Fite\u2019s car was a yellow Ford coupe.\u201d . . .\nInez McLendon, witness for plaintiff, testified in part: \u201cWe left tbe apartment about fifteen of ten, or probably ten. Miss Dempster, Mr. Deal, Mr. Lineberger and myself. We got in tbe automobile \u2014 I rode in tbe back seat with Mr. Lineberger. We started to Gastonia and turned at fair ground and changed, I got in tbe front seat witb Mr. Lineberger and Miss Dempster and Mr. Deal got in tbe back seat. We started back to Charlotte \u2014 we bad not stopped on tbe road. Just on this side of tbe Hatch Hosiery Mill we were coming back to Charlotte, and all of a sudden we beard a terrific crash, we didn\u2019t know what bad happened, I thought a train bad bit us. We were shocked for a moment, I couldn\u2019t realize what bad happened. Tbe first thing I realized someone was flashing a light in tbe car. Three men were standing outside, later I found it was tbe sheriff, Mr. Warren and Mr. Nixon. I got out first on tbe outside of tbe road and helped Miss Dempster out. I was holding both arms around her to bold her up, she could not stand up by herself. She was complaining \u2018Oh my back\u2019 and I couldn\u2019t do anything for her. . . . After talking with him (defendant) she crumpled down on the highway. That was back of our car, I couldn\u2019t help lift her, I called to some of the men to help me.\u201d\nThe defendant testified, in part: \u201cI was coming from Lowell on the Wilkinson Boulevard, I was on the right-hand side of the road making a speed around forty-five miles an hour. When this car all of a sudden loomed up ahead of me without a tail light. I attempted to miss it and stop, but I failed. I hit the car, but I did all in my power to prevent it. ... I broke three of my front teeth off and broke my nose. I had two black eyes and several gashes about the neck, body and a sprained ankle.\u201d The defendant denied the material allegations of plaintiff and her witnesses.\nA. B. Roberson, for defendant, testified in part: \u201cI saw the Deal car pass. The big glass door in front of the mill, as I walked up there and looked out they were coming on right slow, the front light was out and it attracted my attention. Then I went out, I kept watching them on until they went out of light of the mill which shined on the road. There was no light in the rear of their car. I saw the yellow car pass. I didn\u2019t pay much attention to it, it seemed that neither one were breaking any speed. He didn\u2019t. attract my attention very much. His lights were burning. Immediately after that, I heard the noise and broke and ran up there. . . . The mill is about fifty feet from the road. I was on the inside of the mill looking out of the big glass door when the Deal car passed. I was attracted to the car because it was running so slow and because it didn\u2019t have any lights. The right-hand light was burning on the outside, the left-hand light next to me was out. I also watched the tail light. It attracted my attention and I noticed it, I was coining out of the door at that time. I had done made my round and I was due to come out. I stay in the boiler room. Mr. Fite\u2019s car couldn\u2019t be very far because I just came out of the door, about the time I cleared the door and started to push it back, his car came along. I didn\u2019t see the Fite car until the crash happened. . . . I don\u2019t think either car was running at a reckless rate of speed in my opinion. . . . Q. \"Was there anything to hinder him from seeing the Deal car ? Answer: I guess he could at that time. It was a straight road one and one-half miles. Q. There was nothing to keep Mr. Fite from seeing the Deal car if his lights were burning ? Answer : . . . There was nothing between them.\u201d\nW. K. Mingus, a policeman in Belmont, witness for defendant, testified in part: \u201cI am a policeman in Belmont, I know Mr. Deal \u2014 he was driving a Ford coach. I am familiar with the car, I remember about the time this accident happened. I stopped Mr. Deal the day before this incident, because of headlight. Always when we stop a man, we examine his headlight and rear light. It had been sometime previous to this one headlight and one tail light was out. Said just the same as we tell any of them to have them fixed.\u201d\nJ. C. Reed, witness for defendant, testified in part: \u201cJust about dark Mr. Deal came into the service station, bought some gas and started out and went toward Belmont and didn\u2019t have any tail light. Later on those cars came back there. He wanted to call a doctor and call a wrecker.\u201d\nDennis Deal recalled, denied what this witness testified to in part.\nDr. O. C. Phillips, witness for defendant, testified in part: \u201cI am a physician and specialist in X-ray examination treatment. I have been in that class of business for thirteen years. I had occasion to take X-ray pictures of Miss Dempster. . . . This is the plate made on 24 September, 1931, of Miss Dempster\u2019s dorsal spine. . . . Taking the sixth and seventh dorsal, I find this deviation in the seventh and eighth, as to my count of the vertebrae. Here is the eighth showing a very slight deviation from this one, for instance. This one is a little hollowed out at the front part of the body of the vertebra. \u00a5e find above that a projection downward of the lower surface of the body, which compensates for that little depression. We find the same thing in the bodies of the vertebras a little below, that lead us to believe that was not due to injury, but result of the condition of the individual, her posture as she grew up, that caused the bone to develop in that way. That was our opinion in that ease, and in our opinion there is no fracture. We examined her at the request of Dr. Myers and gave this report. The condition of the dorsal spine is the same as at previous examination which we made on 24 September, 1931. It is our opinion that the condition of the vertebras is normal in this individual, and not a result of injury.\u201d\nDr. O. L. Miller, witness for defendant, testified in part: \u201cMy profession is bone joint surgery. I do some surgery at Orthopedic Hospital in Gastonia. I have an office in Charlotte. I have been specializing in orthopedic surgery for about fifteen years. I have a good X-ray in my place here. I had occasion to take X-ray pictures of the back of Miss Dempster the latter part of September, about the 20th of September, 1931. I have those plates with me. One is from the side and one from the front. I will put the front X-ray plate up here first placing same in the light on the judge\u2019s desk. I don\u2019t see any fracture in this plate. If they were there I think they would be evident. She has rather narrow inter spaces between the vertebrae up in the dorsal section. I took another picture. I don\u2019t think I would want to satisfy myself without another view. This one is lateral view of the lady\u2019s spine, taken through the side. No evidence of fracture there, no evidence that there has ever been any fracture.\u201d\nDr. Stephen Gaul, witness for defendant, testified in part: \u201cI do bone joint surgery. I have been doing that since 1915. I graduated in Philadelphia. I had two years internship and after that I was at the Walter Eeid Hospital. This picture is anterior posture view of the spine of Miss Dempster. She has narrowing of the spaces between various vertebra^ and also some narrowing along these vertebras and a lipping here, otherwise it is nothing else. I am not satisfied from this view to give an opinion on that. In the picture taken by Dr. Phillips she has a posterior condition \u2014 round back, narrows at these spaces, she has narrowing in this vetebral space and this one. That condition exists in a number of vertebrae in the dorsal region. I have looked at these before and seen no fracture, particularly in the seventh and eighth dorsal vertebra there is no fracture. ... I don\u2019t see anything that would disturb the functional use of the spine in its ordinary movements. I don\u2019t see anything that would cause pain.\u201d\nThe plaintiff in rebuttal recalled Dr. J. Eush Shull, an expert, who without objection testified contrary to the expert testimony of defendant\u2019s witnesses. Both plaintiff and defendant proved their characters were good.\nThe usual issues of negligence and damage were submitted to the jury, who answered in favor of plaintiff. Defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones and other material facts will be considered in the opinion.\nJ. D. McCall and A. M. Butter for plaintiff.\nL. Lawrence Jones for defendant." }, "file_name": "0697-01", "first_page_order": 765, "last_page_order": 776 }