{ "id": 8615957, "name": "NORMAN GOLD, Administrator, v. W. B. KIKER et al.", "name_abbreviation": "Gold v. Kiker", "decision_date": "1940-09-25", "docket_number": "", "first_page": "204", "last_page": "209", "citations": [ { "type": "official", "cite": "218 N.C. 204" } ], "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": "216 N. C., 511", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607027 ], "opinion_index": -1, "case_paths": [ "/nc/216/0511-01" ] }, { "cite": "187 S. E., 759", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": -1 }, { "cite": "210 N. C., 835", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629673 ], "opinion_index": -1, "case_paths": [ "/nc/210/0835-01" ] }, { "cite": "150 S. E., 184", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "197 N. C., 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630784 ], "opinion_index": 0, "case_paths": [ "/nc/197/0628-01" ] }, { "cite": "132 S. E., 9", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "191 N. C., 408", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629540 ], "opinion_index": 0, "case_paths": [ "/nc/191/0408-01" ] }, { "cite": "113 S. E., 672", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "184 N. C., 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269625 ], "opinion_index": 0, "case_paths": [ "/nc/184/0179-01" ] }, { "cite": "187 S. E., 564", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "210 N. C., 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627036 ], "opinion_index": 0, "case_paths": [ "/nc/210/0462-01" ] }, { "cite": "190 S. E., 897", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N. C., 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628124 ], "opinion_index": 0, "case_paths": [ "/nc/211/0567-01" ] }, { "cite": "178 S. E., 601", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "207 N. C., 787", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628584 ], "opinion_index": 0, "case_paths": [ "/nc/207/0787-01" ] }, { "cite": "197 S. E., 146", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "213 N. C., 569", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629400 ], "opinion_index": 0, "case_paths": [ "/nc/213/0569-01" ] }, { "cite": "161 S. E., 686", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "201 N. C., 808", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628308 ], "opinion_index": 0, "case_paths": [ "/nc/201/0808-01" ] }, { "cite": "154 S. E., 626", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "199 N. C., 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600929 ], "opinion_index": 0, "case_paths": [ "/nc/199/0364-01" ] }, { "cite": "99 S. E., 358", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "177 N. C., 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654733 ], "opinion_index": 0, "case_paths": [ "/nc/177/0476-01" ] }, { "cite": "109 S. E., 365", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "182 N. C., 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656408 ], "opinion_index": 0, "case_paths": [ "/nc/182/0477-01" ] }, { "cite": "118 S. E., 797", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "186 N. C., 56", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652709 ], "opinion_index": 0, "case_paths": [ "/nc/186/0056-01" ] }, { "cite": "157 S. E., 12", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "200 N. C., 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621909 ], "opinion_index": 0, "case_paths": [ "/nc/200/0382-01" ] }, { "cite": "110 S. E., 113", "category": "reporters:state_regional", "reporter": "S.E.", "case_ids": [ 1971770 ], "opinion_index": 0, "case_paths": [ "/sc/118/0134-01" ] }, { "cite": "183 N. C., 33", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655166 ], "opinion_index": 0, "case_paths": [ "/nc/183/0033-01" ] }, { "cite": "166 S. E., 292", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "203 N. C., 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609830 ], "opinion_index": 0, "case_paths": [ "/nc/203/0316-01" ] }, { "cite": "140 S. E., 807", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "194 N. C., 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619012 ], "opinion_index": 0, "case_paths": [ "/nc/194/0760-01" ] }, { "cite": "191 S. E., 353", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N. C., 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628228 ], "opinion_index": 0, "case_paths": [ "/nc/211/0591-01" ] }, { "cite": "91 S. E., 854", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "173 N. C., 755", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272300 ], "opinion_index": 0, "case_paths": [ "/nc/173/0755-01" ] } ], "analysis": { "cardinality": 703, "char_count": 14485, "ocr_confidence": 0.489, "pagerank": { "raw": 1.1954391939728267e-07, "percentile": 0.5923154207059949 }, "sha256": "f6eac71098540022d8270d957e33b231a6420174cae7efb1833857dd7e9e6834", "simhash": "1:504bae59208e92fb", "word_count": 2440 }, "last_updated": "2023-07-14T19:22:12.547739+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ClabKSON and ScheNCK, JJ., dissent on first question only.", "Seawell, J., dissents." ], "parties": [ "NORMAN GOLD, Administrator, v. W. B. KIKER et al." ], "opinions": [ { "text": "Stacy, C. J.\n(after stating the facts as above) : Two serious questions are posed by the record:\nFirst. Was it error to refuse the defendant\u2019s motion for a mistrial? The answer to this question is not altogether free from difficulty, albeit the reasons assigned by the defendant for its request were perhaps untenable. Was not the real reason for ordering a dismissal of the action as against Kiker & Yount the probable harm that might otherwise come to Ames & Webb, Inc.? And if it were hurtful for them to remain in the case, notwithstanding their agreement to do so, had not the harm already been done? S. v. Rogers, 173 N. C., 755, 91 S. E., 854, L. R. A., 1917 E, 1857. It may be conceded the record is such as to leave the matter in doubt. This alone would seem to defeat the assignment of error on appeal, as the party alleging error has the laboring oar and must overcome the presumption against him. Cole v. R. R., 211 N. C., 591, 191 S. E., 353. But in addition, it appears that the defendant elected to place the circumstances before the jury and was allowed to take credit for the amount Kiker & Yount had agreed to pay the plaintiffs. The jury was instructed to disregard the \u201ccompromise\u201d agreement in determining the liability of Ames & Webb, Inc., and to consider it only for purposes of credit in case they came to the award of damages. Did not this cure any previous objection or render it harmless? Hyatt v. McCoy, 194 N. C., 760, 140 S. E., 807. The record also reveals that the motion was addressed primarily to the court\u2019s discretion, and for reasons regarded by the court as inconclusive. Discretionary rulings of the trial court are not ordinarily considered on appeal, unless accompanied by some imputed error of law or legal inference. Cole v. R. R., supra; S. v. Lea, 203 N. C., 316, 166 S. E., 292.\nTbe trial court was confronted with, an unusual situation. We cannot say there was error in the way it was handled or that prejudice necessarily resulted therefrom. The \u201ccompromise\u201d was not with the defendant and the plaintiff but with the plaintiff and a third party. The defendant\u2019s liability alone was at issue upon the trial. How could the defendant complain even if Kiker & Yount had admitted their liability on the hearing? This would not have established any liability against Ames & Webb, Inc. The defendants were dealing with each other \u201cat arm\u2019s length.\u201d The suggestion that some disadvantage may have come to the defendant from what took place is wanting in sufficiency to work a new trial. McNinch v. Trust Co., 183 N. C., 33, 110 S. E., 113. Verdicts and judgments are not to be disturbed except upon a showing of prejudicial error, i.e., error which amounts to the denial of some substantial right. Combs v. Paul, 200 N. C., 382, 157 S. E., 12; Wilson v. Lumber Co., 186 N. C., 56, 118 S. E., 797; In re Ross, 182 N. C., 477, 109 S. E., 365; Brewer v. Ring, 177 N. C., 476, 99 S. E., 358. Moreover, supposing a new trial were granted and the same situation should arise again, what would the trial court do about it? Lane v. Paschall, 199 N. C., 364, 154 S. E., 626. It is not contended that the actions should be dismissed ex mero motu. The court was only asked to declare a mistrial. The conclusion is reached that the exception must be overruled. See Goodman v. Goodman, 201 N. C., 808, 161 S. E., 686, and cases there cited.\nSecond. Was it error to overrule the defendant\u2019s motion for judgment of nonsuit in the Walker case on the ground of plaintiff\u2019s contributory negligence? This must be answered in the negative. It is true, the plaintiff\u2019s testimony-in-chief was weakened somewhat by his cross-examination, but on the whole it would seem the issue was one for the twelve. The ruling is supported by what was said on the former appeal in the Gold case, and the following cases are also in point: Ferguson v. Asheville, 213 N. C., 569, 197 S. E., 146; Lincoln v. R. R., 207 N. C., 787, 178 S. E., 601.\nIt is readily conceded that the plaintiff\u2019s negligence, in order to bar a recovery in an action like the present, need not be the sole proximate cause of the injury, for this would exclude any idea of negligence on the part of defendant. Absher v. Raleigh, 211 N. C., 567, 190 S. E., 897. It is enough if it contribute to the injury. Wright v. Grocery Co., 210 N. C., 462, 187 S. E., 564; Construction Co. v. R. R., 184 N. C., 179, 113 S. E., 672. The very term \u201ccontributory negligence\u201d ex vi termini implies or presupposes negligence on the part of the defendant. Fulcher v. Lumber Co., 191 N. C., 408, 132 S. E., 9. The testimony of Walker, if not wholly consistent, is sufficiently equivocal on the issue of his contributory negligence to require its submission to the jury. Moseley v. R. R., 197 N. C., 628, 150 S. E., 184.\nSpeaking to tbe duty of both defendants on the former appeal in the Gold case, it was said: \u201cThe contractual obligations assumed by each of the defendants as reflected in the provisions quoted in the above statement of the case provide evidence of legal duty which the defendants, and each of them, owed to plaintiff\u2019s intestate, and others traveling the highway, to exercise ordinary care in providing and maintaining reasonable warnings of and safeguards against conditions existent at the time and place in question \u2014 a duty which originated upon the award of the contract and continued until the final acceptance of the work by the State Highway and Public Works Commission.\u201d\nThe plaintiffs were taxed with one-half the costs which accrued prior to the dismissal of the actions as against Kiker & Yount, and from this they appeal. In the light of the record it would seem that the ruling is authorized by C. S., 1242.\nIt results, therefore, that the judgments should be upheld. This will be done.\nNo error.\nClabKSON and ScheNCK, JJ., dissent on first question only.\nSeawell, J., dissents.", "type": "majority", "author": "Stacy, C. J." } ], "attorneys": [ "Norman Gold and Thorp & Thorp for plaintiffs, appellants and appellees.", "Thos. W. Ruffin for defendant, appellant." ], "corrections": "", "head_matter": "NORMAN GOLD, Administrator, v. W. B. KIKER et al.\n(Filed 25 September, 1940.)\n1. Trial \u00a7 48 \u2014 Denial of motion for mistrial for alleged prejudice resulting from conduct of codefendant held not prejudicial.\nAn action for wrongful death and an action for negligent injury against the same defendants as joint tort-feasors, were consolidated for trial. Both defendants participated in the selection of the jury and in cross-examining plaintiff\u2019s first three witnesses, but counsel for the two defendants were conducting the case at \u201carm\u2019s length.\u201d Appealing defendant moved for a mistrial on the ground that its codefendant was attempting to fix it with liability and the court thereupon made investigation and found that the codefendant had agreed to compromise the case against it but to remain in the case to prevent appealing defendant from placing sole responsibility upon it, and ordered the cause dismissed as to the co-defendant and denied the motion for mistrial. The appealing defendant thereafter cross-examined an adverse witness relative to the compromise agreement, and the court charged the jury that the compromise agreement should have no bearing upon the liability of the appealing defendant, but should be considered solely as credit on damages, if any, awarded against the appealing defendant. Held,: While it is apparent that the court dismissed the action as to the compromising defendant because probable harm might otherwise come to appealing defendant, it not being clear from the record that harm already had been done and it further appearing that the motion for mistrial was addressed to the discretion of the court and that appealing defendant itself elected to place the circumstances before the jury and was allowed to take credit for the amount its codefendant had agreed to pay plaintiffs, that the court instructed the jury to disregard the compromise in determining the liability of the appealing defendant and to consider it only for the purposes of credit in case they came to award damages, the refusal of appealing defendant\u2019s motion for mistrial cannot be held for prejudicial error.\n2. Appeal and Error \u00a7 38\u2014\nThe party alleging error has the laboring oar and must overcome the presumption against him.\n3. Appeal and Error \u00a7 37b\u2014\nDiscretionary rulings of the trial court are not ordinarily considered on appeal unless accompanied by some imputed error of law or legal inference.\n4. Appeal and Error \u00a7 S9a\u2014\nVerdicts and judgments are not to be disturbed except upon a showing of prejudicial error, which is error amounting to the denial of some substantial right.\n5. Negligence \u00a7 19b\u2014\nThe fact that plaintiff\u2019s testimony-in-chief and his testimony upon cross-examination is not wholly consistent, his testimony-in-chief being weakened by his testimony upon cross-examination, does not warrant the granting of defendants\u2019 motion to nonsuit on the ground of contributory negligence, the testimony being sufficiently equivocal to require its submission to the jury.\n6. Negligence \u00a7 11\u2014\nContributory negligence, ex vi termini, presupposes negligence on the part of the. defendant, and contributory negligence will bar recovery if it is one of the proximate causes of the injury.\n7. Highways \u00a7 19\u2014\nIn this action against a road contractor to recover for injury sustained by plaintiff driver while attempting to travel a highway which was under construction, evidence of negligence of defendant in failing to maintain proper warning signs of danger and evidence on the issue of contributory negligence held, properly submitted to the jury.\n8. Costs \u00a7 2b\u2014\nIn this action against joint tort-feasors, the court, upon ascertaining that one defendant had reached a compromise agreement with plaintiff and had agreed to remain in the case solely to prevent the other defendant from fixing it with sole liability, dismissed the action as to the compromising defendant. Held: The order of the court taxing plaintiffs with one-half the costs which accrued prior to the dismissal of the actions against the compromising defendant is authorized by C. S., 1242.\n\u2022Clarkson and Schenck, JJ., dissent in part.\nSeawell, J., dissents.\nAppeals by plaintiffs and defendant, Ames & Webb, Inc., from Bone, J., at April Term, 1940, of Nash.\nCivil actions to recover damages (1) for an alleged wrongful death, and (2) for alleged negligent injuries, consolidated and tried together, without objection, as the two actions arise out of the same wreck. Hewitt v. TJrich, 210 N. C., 835, 187 S. E., 759.\n1. The Action for Wrongful Death (Gold case). This is the same \u2022case that was here on plaintiff\u2019s appeal from a judgment of nonsuit, reported in 216 N. C., 511, 5 S. E. (2d), 548, where the facts are fully set out. The nonsuit was reversed and the cause remanded for further hearing. Reference to the previous report of the ease will suffice for statement of the principal facts, as they are substantially the same on the present record.\n2. The Action for Personal Injuries (Walker case). I. D. Walker was the driver of the truck and sustained serious and permanent injuries when it ran into, or \u201csideswiped,\u201d the bridge abutment three miles south of Whitakers on paved Highway No. 301 on the night of 19 May, 1938.\nThe two actions having been consolidated were tried upon the same evidence and the same state of facts. Reference to previous report of the Gold case will disclose the entire factual situation.\nThe trial was started on Thursday of the first week of the April Term. Both defendants participated in the selection of the jury and in the cross-examination of the first three witnesses offered by the plaintiffs\u2014 the third witness being I. D. Walker, plaintiff in the second suit. When the examination of Walker had been completed, counsel for defendant, Ames & Webb, Inc., in the absence of the jury, asked that a mistrial be ordered on the ground that defendant, Kiker & Yount,.had evidently reached an understanding with the plaintiffs which was \u201cperfectly apparent\u201d as to the character of their defense \u201camounts to an invitation to the jury to return a verdict against them.\u201d\nUpon inquiry, it was disclosed that Kiker & Yount had agreed to pay the plaintiffs $3,500, in full discharge and protection against further liability, which the plaintiffs had agreed to accept \u201ceither before or during the trial ... or after a final settlement with Ames & Webb,\u201d upon mutually satisfactory terms, \u201cand that Kiker & Yount (would) participate in the trial for the purpose of resisting any effort of Ames & Webb to place the sole responsibility upon Kiker & Yount.\u201d\nIt further appeared that, before the trial, counsel for Kiker & Yount had notified counsel for Ames & Webb, Inc., they would henceforth \u201cdeal in these cases at arms length,\u201d because of the latter\u2019s avowed purpose to try to place sole responsibility for the wreck upon Kiker & Yount.\nWithout undertaking to determine the character of the agreement between Kiker & Yount and the plaintiffs \u2014 whether release, indemnity, covenant not to sue, or whatnot \u2014 as there was no request so to determine or plea requiring it, and after a full investigation, the court announced that it \u201cwould decline to allow Kiker & Yount to participate further in the trial.\u201d\nAfter some debate as to how the actions should be terminated as against Kiker & Yount \u2014 whether by voluntary nonsuit or otherwise'\u2014 the court ordered \u201cthat the action be dismissed as to the defendant, Kiker & Yount.\u201d\nThe motion of Ames & Webb, Inc., for a mistrial was thereupon denied. Exception.\nThereafter, in the presence of the jury, apparently on Saturday, Norman Gold was examined as an adverse witness by counsel for Ames & Webb Inc., in respect of the \u201ccontemplated settlement\u201d or understanding between the plaintiff and Kiker & Yount.\nLater, apparently on Monday of the following week, the plaintiffs, oyer objection of defendant, were allowed to offer in evidence the substance of their agreement with Kiker & Yount. Exception. In the charge, the court instructed the jury that the \u201ccompromise\u201d with Kiker & Yount should have no bearing upon the liability of Ames & Webb, Inc., and could only he considered and allowed as a credit upon any damages awarded, in the event they should reach these issues in the two cases.\nThe plaintiffs recovered in both cases, the damages in the wrongful death action being fixed at $10,000, and in the personal injury action at $8,000.\nFrom judgments on the verdicts, the defendant, Ames & Webb, Inc., appeals, assigning errors.\nNorman Gold and Thorp & Thorp for plaintiffs, appellants and appellees.\nThos. W. Ruffin for defendant, appellant." }, "file_name": "0204-01", "first_page_order": 272, "last_page_order": 277 }