{ "id": 8602246, "name": "ESTELLE HARRIS, Admx., v. E. R. DRAPER", "name_abbreviation": "Harris v. Draper", "decision_date": "1951-02-02", "docket_number": "", "first_page": "221", "last_page": "225", "citations": [ { "type": "official", "cite": "233 N.C. 221" } ], "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": "80 A.L.R. 291", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "85 A.L.R. 541", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "119 S.E. 894", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "186 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653842 ], "opinion_index": 0, "case_paths": [ "/nc/186/0446-01" ] }, { "cite": "127 S.E. 601", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "189 N.C. 565", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654659 ], "opinion_index": 0, "case_paths": [ "/nc/189/0565-01" ] }, { "cite": "38 S.E. 2d 514", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "226 N.C. 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621257 ], "opinion_index": 0, "case_paths": [ "/nc/226/0462-01" ] }, { "cite": "232 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613587 ], "opinion_index": 0, "case_paths": [ "/nc/232/0699-01" ] }, { "cite": "39 S.E. 2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "226 N.C. 620", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623394 ], "opinion_index": 0, "case_paths": [ "/nc/226/0620-01" ] }, { "cite": "177 S.E. 170", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "207 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626193 ], "opinion_index": 0, "case_paths": [ "/nc/207/0378-01" ] }, { "cite": "161 S.E. 394", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "201 N.C. 773", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628010 ], "opinion_index": 0, "case_paths": [ "/nc/201/0773-01" ] } ], "analysis": { "cardinality": 523, "char_count": 9341, "ocr_confidence": 0.464, "pagerank": { "raw": 1.1823285151793632e-07, "percentile": 0.5889144502247042 }, "sha256": "031aeafd46f1c42aa5d7ddf133678e4adc764a9fedcf9983fb848599183444e5", "simhash": "1:0b31b0ae17288cb7", "word_count": 1627 }, "last_updated": "2023-07-14T21:52:46.396528+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ESTELLE HARRIS, Admx., v. E. R. DRAPER." ], "opinions": [ { "text": "Stacy, C. J.\nTbe question for decision is whether tbe trial and judgment can be sustained in tbe face of tbe exceptions shown in the record and debated on brief. We are constrained to answer in tbe negative.\nFirst. Exception to Exclusion of Evidence: Tte witness, Ervin Green, if allowed to testify, would bave said the defendant\u2019s car was traveling about 60 miles an bour when it struck the car be was driving. This proffered testimony was competent, its weight and credibility, of course, being for the jury. Hicks v. Love, 201 N.C. 773, 161 S.E. 394; Jones v. Bagwell, 207 N.C. 378, 177 S.E. 170; Tyndall v. Hines Co., 226 N.C. 620, 39 S.E. 2d 828; Brafford v. Cook, 232 N.C. 699.\nTrue it is, tbe jury answered tbe issue of negligence in favor of tbe plaintiff, and tbis ordinarily might bave cured tbe error. In tbe instant ease, however, tbe proffered testimony was also competent on tbe issue of plaintiff\u2019s alleged contributory negligence or tbe sole negligence of tbe defendant. Tbe vital question, debated on tbe bearing, was whether Green or tbe defendant entered tbe intersection against tbe red light.\nSecond. The Misquotation of Evidence in the Court\u2019s Charge: After tbe court bad stated to tbe jury for tbe third time that, according to tbe defendant\u2019s testimony, tbe driver of plaintiff\u2019s intestate\u2019s ear told tbe defendant immediately after tbe collision, \u201cbe did not see tbe light was red ... or tbe red light until be was right under it,\u201d counsel for plaintiff arose and called tbe court\u2019s attention to what be conceived an inadvertent misquotation of tbe evidence. Instead of referring to tbe record which would bave borne out plaintiff\u2019s contention, tbe court replied: \u201cIt is my recollection that be said Green told him that when be ran under it be saw that tbe light was red.\u201d And counsel for defendant also interjected : \u201cThat was my recollection, too.\u201d Thus, instead of correcting tbe inadvertence, it was emphasized and fortified by tbe recollection of defendant\u2019s counsel, which rendered tbe plaintiff\u2019s last state worse than bis first.\nTbe fact tbe jury was immediately told they would not take the court\u2019s recollection, or that of counsel, but would rely on their own memory of what tbe witness bad said was hardly sufficient to meet tbe objection interposed by counsel. The prejudicial emphasis and effect bad already been given and were allowed to stand without any change, modification, or correction.\nIt is tbe rule with us that when counsel deem tbe recitals of tbe court incorrect as to tbe facts of tbe case or tbe contentions arising thereon, tbe matter must be called to tbe court\u2019s attention, either at tbe time or perhaps more appropriately at the close or just before tbe close of tbe charge, so as to afford an opportunity of correction; and where tbis is done, as here, and no correction is made, the party aggrieved must be given a bearing on appeal, if properly presented by exception and assignment of error. S. v. McNair, 226 N.C. 462, 38 S.E. 2d 514; S. v. Sinodis, 189 N.C. 565, 127 S.E. 601; S. v. Barnhill, 186 N.C. 446, 119 S.E. 894, 85 A.L.R. 541.\nThen, too, it must be remembered tbe matter here complained of was deadly on tbe issue of contributory negligence, for an admission from Green that he entered tbe intersection against tbe red light was fatal to plaintiff\u2019s cause under tbe theory of the trial.\nMoreover, it may be doubted whether the court was justified in assuming Ervin Green to be the agent of plaintiff\u2019s intestate and acting in the scope of such agency on the occasion in question. Plaintiff contends that her intestate was a guest in the car at the time and that he went along only to drive the car back to Durham after Green had reached his home in Creedmoor. The evidence appears to be susceptible of either interpretation, which would seem to require or indicate its submission to the jury on the point. Anno. 80 A.L.R. 291.\nA new trial is made necessary by the exceptions. It is so ordered.\nNew trial.", "type": "majority", "author": "Stacy, C. J." } ], "attorneys": [ "Victor S. Bryant, Robert I. Lipton, and Victor 8. Bryant, Jr., for plaintiff, appellant.", "Fuller, 'Reade, Umstead \u2022& Fuller for defendant, appellee." ], "corrections": "", "head_matter": "ESTELLE HARRIS, Admx., v. E. R. DRAPER.\n(Filed 2 February, 1951.)\n1. Automobiles \u00a7 18g (4) \u2014\nThe driver of a car hit by another at right angles at an intersection is competent to testify as to his opinion of the speed of such other car when it struck the ear he was driving, the weight and credibility of his testimony being for the jury.\n2. Appeal and Error \u00a7 39b\u2014\nWhere excluded evidence is germane to the issues of negligence and contributory negligence, error in its exclusion cannot be rendered harmless by the verdict when only one of these issues is answered in favor of the party offering the testimony.\n3. Trial \u00a7 31b: Appeal and Error \u00a7 6c (6) \u2014\nTlie court misquoted the testimony of a witness on a crucial point. Plaintiff\u2019s counsel called the matter to the court\u2019s attention and the court replied that the statement was in accord with its recollection, at which counsel for defendant interjected agreement. Held: The failure of the court to correct the inadvertence must be held for prejudicial error upon exception and assignment of error properly presented.\n4. \u2022 Appeal and Error \u00a7 39f\u2014\nWhere the court, instead of correcting an inadvertence in the statement of the testimony upon a crucial point, states that the narrative was in accordance with the court\u2019s recollection, and the error is emphasized by the interjection of counsel for the opposing party that the narrative was in accordance with his recollection also, the error cannot be held cured by the court\u2019s instruction that the jury should take its own recollection of the evidence and not that of the court or counsel.\n5. Automobiles \u00a7 20b\u2014\nWhere the owner of a car permits another to drive it for exclusive personal purposes of such other person, and rides in the car solely for the purpose of returning the car to his home after such other person has completed his trip, whether the driver is the agent of the owner while making the trip, quaere, but it would seem to be a question for the jury.\nAppeal by plaintiff from Sharp, Special Judge, February-Marcb Term, 1950, of Durham.\nCivil action to recover damages for alleged wrongful death of plaintiff\u2019s intestate and for damages to his automobile when plaintiff\u2019s car, under the control and operation of Ervin Lee Green, collided with or was struck by defendant\u2019s automobile at the intersection of U. S. Highway 15-A and N. C. Highway 264.\nOn Sunday afternoon, 31 October, 1948, plaintiff\u2019s intestate allowed Ervin Green to use his Ford Sedan to take a girl friend from Durham to Raleigh and then to go on over U. S. Highway 15-A to his home in Creedmoor, plaintiff\u2019s intestate going along in order to bring the automobile back from Creedmoor to Durham.\nAt the same time the defendant, E. R. Draper, was traveling in his Hudson Sedan over N. C. Highway 264 from Wake Forest to Durham. Both drivers were quite familiar with these highways, having traveled them frequently, and especially where they intersect about fifteen miles north of Raleigh.\nErvin Green testified that he approached the intersection at a speed of 30 or 35 miles per hour and \u201cas I entered the intersection,\u201d the overhead traffic signal light \u201cwas green for me.\u201d He saw the defendant\u2019s car approaching from the east on 264, but he was first to enter the intersection. \u201cI was just about under the light when I was struck by the other car. . . . The front of the other car struck the right door of my car. I could tell at tbe time tbe other ear struck me bow fast it was going.\u201d \u201cQ. How fast?\u201d Objection sustained. Exception No. 1. If allowed to answer, tbe witness would bave said \u201cAbout 60 miles an bour.\u201d Tbe Ford Sedan was knocked a distance of five or six feet by tbe impact and damaged considerably. Plaintiff\u2019s intestate, wbo was sitting next to tbe rigbt-band door, was cut by flying glass and died on tbe way to tbe bospital.\nTbe defendant testified that be bad a conversation witb Ervin Green just after tbe collision. \u201cI asked bim if be didn\u2019t see tbe red light and be said be didn\u2019t see tbe light until just before be went under it \u2014 he glanced up and saw tbe light. . . . He said be saw it just before be went under it.\u201d\nIn charging tbe jury, tbe trial court quoted tbe defendant several times as saying Green told bim \u201cbe did not see tbe light was red ... or tbe red light until be was right under it.\u201d\nWhereupon counsel interposed:\n\u201cMr. Bryant: Of course, as you instructed the jury, it is their recollection of tbe evidence, but it was my impression that Mr. Draper did not testify Green told him the light was red or be did not see the red light, but that be did not see tbe light until be got into tbe intersection, without making any statement as to its color.\n\u201cCourt (resuming) : Well, gentlemen, it is my recollection he said Green told bim that when be ran under it be saw tbe light was red.\u201d\n\u201cMr. Fuller: That was my recollection, too.\u201d Exception No. 4.\n\u201c(Court \u2014 resuming) : However, you will go by your own recollection and not by mine or by counsel. In any event, gentlemen, you will remember what tbe witness said.\u201d\nTbe issues of negligence and contributory negligence were both answered in the affirmative, and from judgment thereon dismissing tbe action, plaintiff appeals, assigning error.\nVictor S. Bryant, Robert I. Lipton, and Victor 8. Bryant, Jr., for plaintiff, appellant.\nFuller, 'Reade, Umstead \u2022& Fuller for defendant, appellee." }, "file_name": "0221-01", "first_page_order": 271, "last_page_order": 275 }