{ "id": 8627945, "name": "CARMEL STEELMAN v. CHARLES BENFIELD and H. D. McLEAN; and JAMES PARSONS v. CHARLES BENFIELD and H. D. McLEAN", "name_abbreviation": "Steelman v. Benfield", "decision_date": "1948-03-24", "docket_number": "", "first_page": "651", "last_page": "655", "citations": [ { "type": "official", "cite": "228 N.C. 651" } ], "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": "226 N. C., 692", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624633 ], "opinion_index": 0, "case_paths": [ "/nc/226/0692-01" ] }, { "cite": "219 N. C., 134", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621381 ], "opinion_index": 0, "case_paths": [ "/nc/219/0134-01" ] }, { "cite": "224 N. C., 269", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599907 ], "opinion_index": 0, "case_paths": [ "/nc/224/0269-01" ] }, { "cite": "193 S. E., 14", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "212 N. C., 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606775 ], "opinion_index": 0, "case_paths": [ "/nc/212/0251-01" ] }, { "cite": "223 N. C., 788", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617600 ], "opinion_index": 0, "case_paths": [ "/nc/223/0788-01" ] }, { "cite": "218 N. C., 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621616 ], "opinion_index": 0, "case_paths": [ "/nc/218/0505-01" ] }, { "cite": "194 S. E., 83", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "212 N. C., 661", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617280 ], "opinion_index": 0, "case_paths": [ "/nc/212/0661-01" ] }, { "cite": "136 S. E., 726", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "193 N. C., 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217862 ], "opinion_index": 0, "case_paths": [ "/nc/193/0266-01" ] }, { "cite": "81 S. E., 782", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "165 N. C., 323", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658867 ], "opinion_index": 0, "case_paths": [ "/nc/165/0323-01" ] }, { "cite": "156 S. E., 126", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "199 N. C.. 788", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615941 ], "opinion_index": 0, "case_paths": [ "/nc/199/0788-01" ] }, { "cite": "155 S. E., 925", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "199 N. C., 820", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618355, 8618439 ], "opinion_index": 0, "case_paths": [ "/nc/199/0820-01", "/nc/199/0820-02" ] }, { "cite": "218 N. C., 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614021 ], "opinion_index": 0, "case_paths": [ "/nc/218/0063-01" ] }, { "cite": "221 N. C., 562", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "181 S. E., 268", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "208 N. C., 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608156 ], "opinion_index": 0, "case_paths": [ "/nc/208/0409-01" ] }, { "cite": "208 N. C., 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608050 ], "opinion_index": 0, "case_paths": [ "/nc/208/0406-01" ] }, { "cite": "137 S. E., 175", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "193 N. C., 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217692 ], "opinion_index": 0, "case_paths": [ "/nc/193/0428-01" ] }, { "cite": "147 S. E., 735", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "197 N. C., 81", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627190 ], "opinion_index": 0, "case_paths": [ "/nc/197/0081-01" ] }, { "cite": "69 S. E., 427", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "153 N. C., 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272798 ], "opinion_index": 0, "case_paths": [ "/nc/153/0419-01" ] }, { "cite": "69 S. E., 626", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "153 N. C., 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273275 ], "opinion_index": 0, "case_paths": [ "/nc/153/0555-01" ] }, { "cite": "80 S. E., 443", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "164 N. C., 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658402 ], "opinion_index": 0, "case_paths": [ "/nc/164/0396-01" ] }, { "cite": "147 N. C., 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270047 ], "opinion_index": 0, "case_paths": [ "/nc/147/0412-01" ] } ], "analysis": { "cardinality": 683, "char_count": 11834, "ocr_confidence": 0.468, "pagerank": { "raw": 1.1486534453041989e-06, "percentile": 0.9866523106173372 }, "sha256": "b7c2640914efabdaf046e60179adc6b65f8d3dc55169de29ea6ba42a81806722", "simhash": "1:de38a98cf631a919", "word_count": 2074 }, "last_updated": "2023-07-14T21:52:37.324265+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CARMEL STEELMAN v. CHARLES BENFIELD and H. D. McLEAN, and JAMES PARSONS v. CHARLES BENFIELD and H. D. McLEAN." ], "opinions": [ { "text": "PaRNhill, ,T.\nThe defendants\u2019 assignments of error consist - of a seriatim listing of the exceptions entered during the trial. Two and one-half pages of tlieir brief are consumed in stating the \u201cquestions involved.\u201d The \u201cquestions\u201d as stated are the exceptions in abbreviated form, of which the following is typical: \u201cWas there error in the question and answer set forth in Assignment of Error No. 1 (R. p. 21) ?\u201d They make no effort to state the questions of law raised by their exceptions which they desire to have discussed and decided.\n\u201cJust what will constitute a sufficiently specific assignment must depend very largely upon the special circumstances of the particular case; but always the very error relied upon should be definitely and clearly presented, and the Court not compelled to go beyond the assignment itself to learn what the question is.\u201d Thompson v. R. R., 147 N. C., 412; Porter v. Lumber Co., 164 N. C., 396, 80 S. E., 443.\n\u201c. . . the points determinative of the appeal, shall be stated clearly and -intelligibly by the assignment of errors . . .,\u201d McDowell v. Kent, 153 N. C., 555, 69 S. E., 626; Jones v. R. R., 153 N. C., 419, 69 S. E., 427; Cecil v. Lumber Co., 197 N. C., 81, 147 S. E., 735; Rawls v. Lupton, 193 N. C., 428, 137 S. E., 175; Jenkins v. Castelloe, 208 N. C., 406, 181 S. E.; 266; Harrell v. White, 208 N. C., 409, 181 S. E., 268; and \u201cthe first page of appellant\u2019s brief . . . shall be used . . . for a succinct statement of the question or questions involved on the appeal. Such statement should not ordinarily exceed fifteen lines, and should never exceed one page . . .\n\u201cThe statement of the questions involved or presented by the appeal, is designed to enable the Court, as well as counsel, to obtain an immediate view and grasp of the nature of the controversy; and failure to comply with this rule may result in dismissal of the appeal.\u201d Rule 27%, 221 N. C., 562; Caldwell v. R. R., 218 N. C., 63, 10 S. E. (2d), 680; Lumber Co. v. Latham, 199 N. C., 820, 155 S. E., 925; Pruitt v. Wood, 199 N. C.. 788. 156 S. E., 126.\nIt would seem that the motion of plaintiffs to dismiss is not without substantial merit.\nClearly there was sufficient evidence to repel the motion for judgment as in case of nonsuit and to require the submission of appropriate issues to the jury. It was for them to decide the credibility of witnesses and sift the truth from the conflicting testimony.\nExceptions relating to the admission of testimony are without merit. While it is contended that one of the answers of plaintiff Steelman was not responsive and based on opinion and not on fact, there was no motion to strike. Hodges v. Wilson, 165 N. C., 323, 81 S. E., 782; Luttrell v. Hardin, 193 N. C., 266, 136 S. E., 726, and cited cases. A motion \u201cto strike all testimony of plaintiff\u201d entered at the conclusion of his testimony in chief is not sufficient to raise the question sought to be presented.\n\u2022Likewise, there was no exception to the introduction of the photograph used to illustrate the testimony of the witness concerning the damage done to the Steelman car. Exception was interposed for the first time when the witness undertook to use the photograph to explain what he had said. S. v. Gardner, ante, p. 567, and cases cited.\nAs the photograph w\u00bfs used only to explain and illustrate the testimony concerning damage to the ear and not to depict the scene of the accident, it was not rendered incompetent by reason of the fact the automobile had been moved from the scene at the time the photograph was taken. Furthermore, the same evidence was offered later without objection.\nThe court, in reviewing the evidence offered by the respective parties, is not required to give the jury a verbatim recital of the testimony. It must of necessity condense and summarize the essential features thereof in short-hand fashion. All that is required is a summation sufficiently comprehensive to present every substantial and essential feature of the case. When its statement of the evidence in condensed form does not correctly reflect the testimony of the witnesses in any particular respect, it is the duty of counsel to call attention thereto and request a correction.\nThere was testimony concerning the use of a cast on Steelman while he was in the hospital. The doctors discussed putting him in a cast and \u201cthey came to my room and wanted to put me in one but I asked them not to. They said if I observed orders they would not.\u201d As to the manner of operation of the taxi, Parsons testified, \u201cWhen the taxi began to come into the curve he was coming too fast when he started to make the curve he couldn\u2019t make it, the car kept veering over toward us.\u201d Exceptions to excerpts from the court\u2019s review of this and other testimony. offered point out inaccurate statements of facts in evidence rather than statements of fact not shown in evidence. Hence Smith v. Hosiery Mill, 212 N. C., 661, 194 S. E., 83; S. v. Wyont, 218 N. C., 505, 11 S. E. (2d), 413; Curlee v. Scales, 223 N. C., 788, 28 S. E. (2d), 576, and like cases are not in point. Instead they fall within the line of decisions represented by Sorrells v. Decker, 212 N. C., 251, 193 S. E., 14; Ellis v. Wellons, 224 N. C., 269, 29 S. E. (2d), 884; and S. v. Edwards, ante, 153. As the Court\u2019s attention was not called thereto and exception not entered in apt time, they are not now tenable. .\nAt the time of the occurrence which is the subject matter of this controversy G. S. 20-141 was in full force and effect. Hence, evidence of speed greater than was reasonable and prudent under the conditions then existing and, in any event, in excess of 45 miles per hour, was evidence of negligence. Kolman v. Silbert, 219 N. C., 134, 12 S. E. (2d), 915; Hoke v. Greyhound Corp., 226 N. C., 692, 40 S. E. (2d), 345. For present law see Ch. 1067, sec. 17, Session Laws 1947.\nThe court\u2019s charge, considered contextually, discloses that it adequately and clearly defined proximate cause and the degree of care required of a motorist in the operation of his vehicle. Exceptions to excerpts therefrom cannot be sustained.\nOther exceptions relied on by appellants have been carefully considered. They present no new or novel question of law and are not of-sufficient merit to require discussion.\nNo harmful or prejudicial error in the trial below is made to appear. Hence the judgments entered must be affirmed.\nNo error.", "type": "majority", "author": "PaRNhill, ,T." } ], "attorneys": [ "W. II. McMwee and Hayes \u25a0& Ilayes for plaintiff appellees.", "W. IT. Strickland and Larry S. Moore for defendant appellants." ], "corrections": "", "head_matter": "CARMEL STEELMAN v. CHARLES BENFIELD and H. D. McLEAN, and JAMES PARSONS v. CHARLES BENFIELD and H. D. McLEAN.\n(Filed 24 March, 1948.)\n1. Appeal and Error \u00a7 23\u2014\nWhile the form of the assignments of error must depend largely upon the circumstances of each case, they should clearly present the error relied upon without the necessity of going beyond the assignment itself to learn what the question is.\n2. Appeal and Error \u00a7 28\u2014\nThe brief should succinctly state the questions of law arising upon the exceptions which appellant desires to have discussed and decided so as to enable the court, as well as counsel, to obtain an immediate grasp of the nature of the controversy.\n3. Automobiles \u00a7 18h (2) \u2014\nTwo cars, traveling in opposite directions, collided on the highway. There was conflicting evidence for plaintiffs and for defendants tending to show, respectively, that the other car was being operated on its left side of the highway. Held: The conflicting evidence raises questions of fact for the determination of the jury.\n4. Trial \u00a7 15\u2014\nMotion to strike must be made immediately after the testimony objected to in order to preserve an exception to the admission of the evidence.\n5. Trial \u00a7 14\u2014\nObjection to the admission of a photograph in evidence, interposed for the first time when a witness undertakes to use the photograph to explain his testimony, is too late.\nt\u00ed. Evidence \u00a7 30a\u2014\nWhere a photograph is used solely to explain testimony as to the damage to a car and not to depict the scene of the accident, the fact that the ear had been moved from the scene at the time the photograph was taken does not render it incompetent.\n7. Trial \u00a7 31b\u2014\nThe trial court, in reviewing the evidence, is not required to give a verbatim recital of tbe testimony, but only a summation sufficiently comprehensive to present every substantial and essential feature of the case.\n8. Appeal and Error \u00a7 6c (6) \u2014\nIn the court\u2019s summation of the \u00e9viclence, inaccurate statements of facts in evidence, as distinguished from a statement of facts not shown in the evidence, must be brought to the court\u2019s attention in apt time In order for an exception thereto to be considered.\n9. Automobiles \u00a7 12a\u2014\nEvidence of speed greater than is reasonable and prudent under the conditions then existing and, in any event, in excess of 45 miles per hour,' is evidence of negligence under the provision of G. S., 20-141, prior to the amendment of Oh. 1067, sec. 17, Session Laws 1947.\n10. Appeal and Error\u2019 \u00a7 39f\u2014\nWhere the charge of the,court is without error when considered contextually, exceptions to excerpts therefrom cannot be sustained.\nAppeal by defendants from Allay, J., January Term, 1948, Wilkes.\nNo error.\nTwo civil actions to recover compensation for personal injuries and property damages resulting from a taxi-automobile collision. In the Parsons case the defendants pleaded a counterclaim. The two cases were tried together by consent.\nOn 25 July 1946, Steelman was operating an automobile on the Wilkesboro-Lenoir highway, going in a westerly direction towards Lenoir. Parsons was his guest passenger. At the same time Benfield was operating a taxi belonging to defendant McLean on the same highway, going easterly towards Wilkesboro. He was at the time an employee of McLean, engaged in the discharge of his duties as such. The two vehicles met and collided in a curve just west of the village of Boomer. Evidence as to the circumstances of the collision is in sharp conflict.\nThe testimony for plaintiffs tends to show that Steelman was operating his vehicle on his right side of the road and on the outside of the curve, at about 30 miles per hour; that Benfield approached from the opposite direction at a high rate of speed \u2014 60 or 65 miles per hour; his taxi \u201cwas bouncing up and down\u201d and was veering to its left across the center of the road. \u201cWhen the taxi began to come into the curve he (Benfield) was coming too fast when he started to make the curve he couldn\u2019t make it, the car kept veering over toward us.\u201d Steelman cut his car to the right, partly off the hard surface, when the taxi collided with his right front wheel, \u201cbounced up on top\u201d of the automobile -and \u201cbounced back off the side of our car and was sitting about midways of the road.\u201d Parsons was thrown against the windshield and then out of the car on the bank of the road, suffering certain personal injuries. Steelman remained under the steering wheel and suffered a fractured pelvis and other serious injuries. His car was badly damaged.\nOn the other hand, the evidence for the defendants tends to show that just as the taxi, going about 40 miles per hour, reached or was entering the curve, Benfield saw Steelman\u2019s automobile approaching on the wrong side of the road and that he cut to his right, partly off the hard' surface, to avoid the collision, but was hit by plaintiff\u2019s automobile and the taxi was knocked backward 10 or 15 feet. BenfLeld suffered certain personal injuries and \u201cthe whole front end\u201d of his taxi was mashed in.\nAt the hearing in the court below appropriate issues in each action were submitted to the jury. In the Parsons case these included issues raised by defendants\u2019 pleaded counterclaim. . The issues in each case were answered in favor of the plaintiff. From judgments on the verdicts defendants appealed.\nW. II. McMwee and Hayes \u25a0& Ilayes for plaintiff appellees.\nW. IT. Strickland and Larry S. Moore for defendant appellants." }, "file_name": "0651-01", "first_page_order": 697, "last_page_order": 701 }