{ "id": 8605581, "name": "JOE WOODS, Administrator of EDWARD WOODS, v. ROADWAY EXPRESS, INC.; and FRED B. SWANN, Administrator of MABEL LEE SWANN, v. ROADWAY EXPRESS, INC.", "name_abbreviation": "Woods v. Roadway Express, Inc.", "decision_date": "1943-06-02", "docket_number": "", "first_page": "269", "last_page": "272", "citations": [ { "type": "official", "cite": "223 N.C. 269" } ], "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": "129 S. E., 582", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "190 N. C., 862", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618190 ], "opinion_index": 0, "case_paths": [ "/nc/190/0862-01" ] }, { "cite": "186 S. E., 322", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "210 N. C., 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625777 ], "opinion_index": 0, "case_paths": [ "/nc/210/0271-01" ] }, { "cite": "180 S. E., 704", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "208 N. C., 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603812 ], "opinion_index": 0, "case_paths": [ "/nc/208/0301-01" ] }, { "cite": "154 S. E., 604", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "199 N. C., 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599333 ], "opinion_index": 0, "case_paths": [ "/nc/199/0278-01" ] }, { "cite": "180 S. E., 694", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "208 N. C., 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603419 ], "opinion_index": 0, "case_paths": [ "/nc/208/0293-01" ] }, { "cite": "131 S. E., 735", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "191 N. C., 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628865 ], "opinion_index": 0, "case_paths": [ "/nc/191/0297-01" ] } ], "analysis": { "cardinality": 480, "char_count": 9710, "ocr_confidence": 0.481, "pagerank": { "raw": 1.61612306956083e-07, "percentile": 0.6864670488511107 }, "sha256": "e368c3da32b2c389ab577af81eed37a80b869d482c5ba00f50e94b10e001d80e", "simhash": "1:901ab4156062717d", "word_count": 1673 }, "last_updated": "2023-07-14T18:13:50.990749+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOE WOODS, Administrator of EDWARD WOODS, v. ROADWAY EXPRESS, INC., and FRED B. SWANN, Administrator of MABEL LEE SWANN, v. ROADWAY EXPRESS, INC." ], "opinions": [ { "text": "ScheNCK, J.\nTbe first exceptive assignment of error set out in appellants\u2019 brief relates to tbe court\u2019s exclusion of testimony of tbe father of tbe intestate Woods to tbe effect that be, tbe witness, saw tbe body of bis dead son in tbe funeral home and saw tbe wound on tbe left arm. This testimony was offered ostensibly to show that tbe intestate bad bis left band outside of tbe automobile, as a signal of bis intention to turn to tbe left, at tbe time of tbe fatal collision. Tbe witness not being an expert, could not have testified as to tbe cause of tbe fatal collision when be did not see it occur. This assignment is untenable.\nTbe second and third exceptive assignments of error set out in appellant\u2019s brief relate to tbe court\u2019s failure to instruct tbe jury not to consider certain testimony, objection to which was sustained. In tbe absence of a request for such instruction, sucb assignment of error is untenable. No sucb request was made.\nTbe fourth and fifth and eleventh exceptive assignments of error set out in appellants\u2019 brief relate to the admission, over objection, of testimony to the effect that immediately after the collision Hallie Pearl Swepson, who was thrown out of the automobile, stated that she had told the driver of the automobile that this (collision) was going to happen, that he was driving in and out of traffic, running past cars. This testimony was first admitted for the limited purpose of contradicting the testimony of Hallie Pearl Swepson to the effect that she had made no such statements, and, subsequently, was admitted generally when a witness, one Bernard, testified that Hallie Pearl Swepson, \u201cwas thrown from the car as the trailer hit it, and she came running back, she was hollering I told him not to do it, I told him not to do it \u2014 in their colored language,\u201d she said, \u201cI told him not to go in and out, and not to drive like he was crazy.\u201d We are of the opinion that his Honor\u2019s ruling was correct. The testimony under investigation was clearly competent to contradict the former testimony of Hallie Pearl Swepson, and when it was made to appear that the statements were made almost contemporaneous with the collision, and were spontaneous utterances of the mind while under the influence of the transaction, such testimony became competent generally as pars res gestes, no matter by whom made. Young v. Stewart, 191 N. C., 297 (302-3), 131 S. E., 735, and cases there cited.\nThe twelfth exceptive assignment of error relates to the reference made in the charge to the testimony admitted as pars res gestae. Since there was no error in the admission of the testimony there was no error in referring to it in the charge.\nThe sixth, seventh, ninth and tenth exceptive assignments of error set out in the appellants\u2019 brief relate to evidence which it is contended are purely conclusions and opinions of the witnesses, and are therefore incompetent. We do not concur in these contentions for the reason that we are of the opinion that the evidence assailed was nothing more than a \u201cshorthand statement of facts\u201d'as they existed. Myers v. Utilities Co., 208 N. C., 293 (295), 180 S. E., 694.\nThe eighth exceptive assignment of error which relates to the refusal of the court to allow the witness to use a certain photograph to explain his testimony cannot be sustained for the reason, first, that the photograph was not shown to be a true representation of the wreck; second, it does not appear in the record how the witness would have used the photograph to explain his testimony.\nThe thirteenth, fourteenth, fifteenth and nineteenth exceptive assignments of error set out in the appellants\u2019 brief relate to excerpts from his Honor\u2019s charge. All of these excerpts were addressed to the first issue in each case, which, presented the question as to whether the plaintiffs? intestates were injured and killed by the actionable negligence of the defendant. The jury answered the first issue in each case in the affirmative, that is, in favor of the plaintiffs; therefore, if there was error in any of the excerpts assailed, such error was harmless to the plaintiffs, appellants. \u201cTo be reversible it must appear that the error was material and prejudicial to appellant\u2019s rights. S. v. Beal, 199 N. C., 278, 154 S. E., 604.\u201d White v. McCabe, 208 N. C., 301 (304), 180 S. E., 704.\nThe sixteenth, seventeenth and eighteenth exceptive assignments of error set out in the appellants\u2019 brief relate to excerpts from his Honor\u2019s charge upon the second issue in the case of Woods\u2019 administrator which presents the question as to whether the intestate by his own negligence contributed to his own injury and death. We have examined the charge as it relates to the contributory negligence of the intestate Woods, the driver of the automobile, and we find it free from prejudicial error. If the plaintiff administrator desired a fuller and more detailed charge it was his duty to ask therefor by presenting prayers for special instructions. C. S., 565; S. v. Spillman, 210 N. C., 271, 186 S. E., 322; S. v. Jackson, 190 N. C., 862, 129 S. E., 582.\nThe twentieth exceptive assignment of error set out in the appellants\u2019 brief relates to the charge of his Honor upon the second issue in the case of Swann\u2019s administrator addressed to the measure of damages. We have examined the pertinent portion of the charge and find no prejudicial error therein. If the plaintiff desired a fuller or more detailed charge it was incumbent upon him to have requested it by way of prayers for special instructions. The fact that the court failed to charge that the father of the intestate would have been entitled to her earnings until she had reached the age of 21 years, if error, was error in favor of the plaintiff, and, therefore, not prejudicial.\nWe have examined the entire record, and each assignment of error in detail, and are left with the impression that the plaintiffs have had a fair and impartial trial, and, therefore, find\nNo error.", "type": "majority", "author": "ScheNCK, J." } ], "attorneys": [ "Thomas C. Garter, June A. Grumpier, and Graham & Eskridge for plaintiffs, appellants.", "Bonner Sawyer and Sapp & Sapp for defendant, appellee." ], "corrections": "", "head_matter": "JOE WOODS, Administrator of EDWARD WOODS, v. ROADWAY EXPRESS, INC., and FRED B. SWANN, Administrator of MABEL LEE SWANN, v. ROADWAY EXPRESS, INC.\n(Filed 2 June, 1943.)\n1. Evidence \u00a7 28\u2014\nIn an action to recover for wrongful death from an automobile collision, there was no error in the court\u2019s exclusion of testimony of the father of plaintiff\u2019s intestate, driver of one of the cars, that he saw his son\u2019s dead body, in the funeral home and saw a wound on his left arm, in an attempt to show that intestate had his left arm held out as a signal for a left turn at the time of the accident.\n2. Trial \u00a7 32\u2014\nIf a litigant desires a fuller or more detailed charge by the court to the jury, it is incumbent upon him to ask therefor by presenting prayers for special instructions.\n3. Evidence \u00a7\u00a7 19, 42b\u2014\nWhere, in an action for wrongful death by automobile collision, an occupant of the car, driven by plaintiff\u2019s intestate, was thrown out of the car by the impact, (1) evidence that such person stated that she told plaintiff\u2019s intestate that the collision \u201cwas going to happen, that he was driving in and out of traffic, and running past cars,\u201d was competent to contradict a denial by such person, while on the stand, that she made such statements; (2) and, when it was made to appear that such statements were almost contemporaneous with the collision, they are competent as pars res gestw.\n4. Evidence \u00a7 30a\u2014\nIn an action for damages resulting from an automobile collision, there is no error in the court\u2019s refusal to allow a witness to use a photograph to explain his testimony, when the photograph is not shown to be a true representation of the wreck, and the record does not show how the witness would have so used the photograph.\n5. Appeal and Error \u00a7 39e: Trial \u00a7 36\u2014\nErrors in the court\u2019s charge, on an issue answered in favor of the party who makes the exceptive assignments of error, are harmless. To be reversible, the error must be material and prejudicial to appellant\u2019s rights.\nAppeal by plaintiffs from Bone, J., at October Term, 1942, of ObaNge.\nTwo actions to recover damages for tbe wrongful deaths of tbe plaintiffs\u2019 intestates, alleged to have been caused by tbe negligence of tbe defendant, consolidated for tbe purpose of trial.\nOn 6 October, 1941, about 8 o\u2019clock p.m., on Highway No. 70, in Orange Oounty, west of Hillsboro, Edward \"Woods was driving a Chevrolet automobile in an easterly direction. In tbe automobile with him were Mabel Lee Swann, Robert Swepson, Hallie Pearl Swepson and Christine Swepson. On tbe said highway at tbe same time and at tbe same place and going in tbe same direction, H. L. Lowdermilk was driving a trailer-truck of tbe Roadway Express, Inc., tbe defendant.\nTbe automobile in which tbe intestates were riding passed tbe truck of tbe defendant, and after going some distance slowed up, and tbe driver of tbe defendant\u2019s truck endeavored to pass tbe intestates\u2019 automobile, when said automobile was turned suddenly to tbe left, tbe north, to enter an intersecting road, thereby causing a collision between tbe truck and tbe automobile, resulting in tbe deaths of tbe intestates, Edward Woods and Mabel Lee Swann.\nTbe jury found in tbe case of Woods\u2019 administrator that tbe defendant was guilty of actionable negligence, that tbe intestate was guilty of contributory negligence, and denied recoveryand in tbe case of Swann\u2019s administrator that tbe defendant was guilty of negligence and awarded tbe plaintiff damages in tbe sum of one thousand dollars.\nFrom judgment predicated on tbe verdict each of tbe plaintiffs ap- . pealed, assigning errors.\nThomas C. Garter, June A. Grumpier, and Graham & Eskridge for plaintiffs, appellants.\nBonner Sawyer and Sapp & Sapp for defendant, appellee." }, "file_name": "0269-01", "first_page_order": 321, "last_page_order": 324 }