{ "id": 8626061, "name": "MRS. JOHN LOOKABILL, Administratrix of Ruth L. Workman, Deceased v. HENRY G. REGAN", "name_abbreviation": "Lookabill v. Regan", "decision_date": "1957-11-20", "docket_number": "", "first_page": "199", "last_page": "204", "citations": [ { "type": "official", "cite": "247 N.C. 199" } ], "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": "96 S.E. 2d, 421", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "245 N.C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613824 ], "opinion_index": -1, "case_paths": [ "/nc/245/0500-01" ] }, { "cite": "80 S.E. 2d, 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "239 N.C. 560", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627863 ], "opinion_index": 0, "case_paths": [ "/nc/239/0560-01" ] }, { "cite": "54 S.E. 413", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "141 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11253446 ], "opinion_index": 0, "case_paths": [ "/nc/141/0482-01" ] }, { "cite": "57 S.E. 19", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "144 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660159 ], "opinion_index": 0, "case_paths": [ "/nc/144/0375-01" ] }, { "cite": "59 S.E. 139", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "145 N.C. 383", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11253472 ], "opinion_index": 0, "case_paths": [ "/nc/145/0383-01" ] }, { "cite": "109 S.E. 847", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "182 N.C. 701", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657811 ], "opinion_index": 0, "case_paths": [ "/nc/182/0701-01" ] }, { "cite": "111 S.E. 523", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "183 N.C. 771", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658982 ], "opinion_index": 0, "case_paths": [ "/nc/183/0771-01" ] }, { "cite": "117 S.E. 27", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "185 N.C. 700", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657667 ], "opinion_index": 0, "case_paths": [ "/nc/185/0700-01" ] }, { "cite": "119 S.E. 884", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "186 N.C. 475", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653927 ], "opinion_index": 0, "case_paths": [ "/nc/186/0475-01" ] }, { "cite": "124 S.E. 833", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "188 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654124 ], "opinion_index": 0, "case_paths": [ "/nc/188/0460-01" ] }, { "cite": "83 S.E. 2d, 798", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "240 N.C. 745", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610745 ], "opinion_index": 0, "case_paths": [ "/nc/240/0745-01" ] } ], "analysis": { "cardinality": 633, "char_count": 12618, "ocr_confidence": 0.567, "pagerank": { "raw": 4.071420055301483e-07, "percentile": 0.90852516884189 }, "sha256": "d56d886ca10a9d0a3fc144dda6a88c90882750756bc9fe45b717b333e0809aed", "simhash": "1:170739087d9ddd29", "word_count": 2195 }, "last_updated": "2023-07-14T22:38:17.459804+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MRS. JOHN LOOKABILL, Administratrix of Ruth L. Workman, Deceased v. HENRY G. REGAN." ], "opinions": [ { "text": "Winborne, C. J.\nAppellant states in her brief filed on this appeal six questions as being involved here. These incorporate eight assignments of error, embracing twenty-five exceptions.\nQuestion I: (Exceptions 1 and 4 \u2014 assignments 1 and 3) \u201cDid the trial court err in permitting opinion evidence and deductive conclusions by lay witnesses?\u201d\nThe matter to which Exception 1 relates arose in this manner: The case on appeal shows that in course of his direct examination defendant testified: \u201cI met a 1955 model Chevrolet and I saw it, I suppose, 250 or 300 feet from it \u2014 possibly 400 feet\u2014 and it was coming at a high rate of speed. I don\u2019t know what, but it was a high rate of speed, and I didn\u2019t think the driver saw me until he got * * * .\u201d Objection and motion to strike. Motion denied. Plaintiff\u2019s exception No. 1.\nThis is the question to which exception 4 relates: \u201cQ. As he pointed, which side of the road did he indicate his car was on by pointing?\u201d Objection \u2014 overruled. Exception No. 4.\nThe answer is that \u201cHe was on. the east side of the road. He stated he saw the car coming at a high rate of speed, and he immediately cut to the right, and the car passed * * * .\u201d The answer removes any objection there may have been in the question. There is no deductive conclusion as to which side of the road he was on. The answer is explicit.\nIt is a general rule of law, adopted in this State, that any person of ordinary intelligence, who has had an opportunity for observation, is competent to testify as to the rate of speed of a moving object, such as an automobile. S. v. Roberson, 240 N.C. 745, 83 S.E. 2d, 798, and cases cited. See also S. v. Roberts, 188 N.C. 460, 124 S.E. 833; Hill and Brooks v. RR Co., 186 N.C. 475, 119 S.E. 884; S. v. Journegan, 185 N.C. 700, 117 S.E. 27; S. v. Jessup, 183 N.C. 771, 111 S.E. 523; Shepherd v. Sellers, 182 N.C. 701, 109 S.E. 847; Taylor v. Security L & A Co., 145 N.C. 383, 59 S.E. 139; Horne v. Power Co., 144 N.C. 375, 57 S.E. 19.\nIndeed, applicable principle is stated in Gilliland v. Board of Education, 141 N.C. 482, 54 S.E. 413, opinion by Hoke, J., in this manner: \u201cA witness who undertakes to testify to objective facts and qualifies his testimony by using the terms, T think\u2019, or T have an impression\u2019, etc., if the witness had had no physical observation or has made no note of the facts, but is merely stating to the court and jury his mental inference or deduction, this, as a rule, is incompetent. But if the witness has had opportunity to note relevant facts himself and did observe and note them, and simply qualifies his testimony in this way because his impression or memory is more or less indistinct, this, while in the form of opinion, is really the statement of a fact, and will be so received. Greenleaf Ev. (16 Ed.) Sec. 430 (i).\u201d\nAnd Hoke, J., continued: \u201cAnd so it is here. The witness was a neighbor of Jeffrey Graham for four years or more and speaks from his own observation. He is giving to the jury impressions of things he saw and noted, and not an inference or deduction from things he had not seen, and the evidence was properly received.\u201d\nIndeed, it is noted that at other times, defendant testified without objection to the high rate of speed intestate of plaintiff was traveling. This had the effect of waiving any objection to the evidence as first given.\nQuestion II: This relates to exception 2, assignment 2, to the trial court refusing the request of plaintiff\u2019s counsel to read the record of the cross-examination of defendant taken at a former trial, \u2014 the vice charged is that the reader may emphasize certain portions as he reads, etc. The court permitted defendant\u2019s counsel to read the whole of the testimony. And the case on appeal fails to show that plaintiff suffered any damage, or that defendant obtained any advantage by so doing. The objection is without merit.\nQuestion III: This question is based upon exception 6, assignment 5, to alleged prejudicial failure of the trial court to charge the jury on the allegations and evidence offered by the plaintiff to show violation of the reckless driving statute by the defendant. If it be conceded that the trial court did fail to so charge the jury, the verdict of the jury finding on the first issue that plaintiff\u2019s intestate was injured and killed by the negligence of the defendant as alleged in the complaint, that is, that defendant\u2019s negligence was a proximate cause of the death of plaintiff\u2019s intestate, renders harmless such failure to charge.\nQuestion IV: This question is based upon assignment of error 4, exception 5, to the use of a hypothetical illustration to explain the doctrine of proximate cause. The illustration was plain and simple. The use of it does not appear prejudicial, but would seem to give the jury clear understanding of what is meant by the term proximate cause in considering the evidence in the case. Appellant cites no authority in support of her contention.\nQuestion V: This question is that \u201cThe trial court failed to give equal stress to the contentions of the plaintiff that it gave to the defendant in its charge to the jury.\u201d It relates to assignment of error 6, which is based upon exceptions 7, 8, 9, 11, 12, 13, 14, 16 and 24, and to assignment of error 8, based on exception 25. All of these exceptions are to portions of the charge as given.\nAppellant does not contend that the trial court either misstated the evidence or the applicable principles of law.\nWhat is said by this Court in Edgewood Knoll Apts. v. Braswell, 239 N.C. 560, 80 S.E. 2d, 653, is appropriate here. It is stated there: \u201cThe chief argument advanced is that the case on appeal discloses that the trial judge devoted more words, as shown by the number of printed lines, in stating contentions of plaintiff than in stating those of defendant. This is not the test. It is a question whether the judge gives \u2018equal stress\u2019 to the contentions of the plaintiff and of the defendant. Otherwise than as above stated' appellants Braswell fail to point out wherein the judge failed to give \u2018equal stress\u2019.\u201d Indeed the record of case on appeal in present case fails to disclose that unequal stress, or emphasis, was displayed by the trial judge in stating the contentions of the respective parties, and in charging the law as to applicable principles.\nQuestion VI: This question \u201cDid the trial court commit error in repeatedly charging that mere violations of various sections of the motor vehicle law by the plaintiff constituted contributory negligence?\u201d, is predicated upon assignment of error 7, based on exceptions 10, 12, 14, 15, 16, 17, 18, 19, 20, 21 and 22 to portions of the charge as given.\nIn this connection appellant states in her brief filed in this Court that \u201cthe trial court charged the jury in eleven different instances that if the plaintiff violated certain motor vehicle laws she would be guilty of contributory negligence,\u201d and that \u201cin seven of the instances the court further instructed the jury that if the contributory negligence was one of the proximate causes of the accident, that the plaintiff could not recover,\u201d citing exceptions 12, 14, 15, 16, 17, 19, and 22, \u201cbut in four of the instances the court failed to charge that the contributory negligence had to be one of the proximate causes to prevent plaintiff\u2019s recovery,\u201d citing exceptions 10, 18, 20 and 21.\nA reading of the charge reveals that in the instances to which the last four exceptions relate the court was only stating abstract rule of the law of negligence as well as of contributory negligence. For instance, the court, referring to provisions of G.S. 20-141 (a), that \u201cno person shall drive a motor vehicle on a highway at a rate of speed greater than is reasonable and prudent under the conditions then existing,\u201d charged the jury \u201cthat if a person operates a motor vehicle upon a public highway at a rate of speed greater than is reasonable and prudent under the conditions then existing at the time and place mentioned in the pleadings, said person is guilty of negligence or contributory negligence.\u201d This is the matter to which exception 10 relates. The other three, 18, 20 and 21, are of like import. And read in context the meaning is clear and understandable.\nIn each of the other seven instances enumerated above, when the court came to apply the law to the facts in respect to the second issue, the court included in each instance both the element of contributory negligence and proximate cause.\nWhile the charge is quite long, it treats in minute detail the contentions of the respective parties clearly \u2014 without undue repetition. And error is not made to appear.\nNo Error.", "type": "majority", "author": "Winborne, C. J." } ], "attorneys": [ "Philip R. Craver, Charles W. Mauze for plaintiff appellant.", "Deal, Hutchins & Minor for defendant appellee." ], "corrections": "", "head_matter": "MRS. JOHN LOOKABILL, Administratrix of Ruth L. Workman, Deceased v. HENRY G. REGAN.\n(Filed 20 November, 1957)\n1. Automobiles \u00a7 38\u2014\nAny person of ordinary intelligence, who has an opportunity for observation, is competent to testify as to the rate of speed of a moving object, such as an automobile.\n2. Same: Evidence \u00a7 45\u2014\nTestimony of a witness, who observed the physical facts, that he \u201csupposed\u201d defendant\u2019s car was 250 or 300 or 400 feet distant when he saw it and was coming \u201cat a high rate of speed,\u201d will not be held incompetent as being merely deductive conclusions of the witness, and certainly cannot be held prejudicial when the witness thereafter testifies without objection as to the high rate of speed the car was traveling.\n3. Same\u2014\nA question asked the witness as to which side of the road a person indicated his car was on cannot be held prejudicial as inviting the witness to give a deductive conclusion when the answer of the witness obviates any error in the question by explicitly stating that the car in question was on the east side of the road at the time.\n4. Appeal and Error \u00a7 41\u2014\nAny error in the admission of testimony over objection is rendered harmless by the later admission of testimony of the same witness to the same effect without objection.\n5. Evidence \u00a7 29\u2014\nObjection that the court permitted defendant\u2019s counsel to read the record of the cross-examination of defendant taken at a former trial, instead of the court reading the record itself, is held without merit.\n6. Appeal and Error \u00a7 20\u2014\nAppellant may not object to a portion of the charge relating to an issue answered in his own favor.\n7. Negligence \u00a7 20\u2014\nThe use by the court of a hypothetical illustration in explaining the doctrine of proximate cause to the jury held not prejudicial.\n8. Appeal and Error \u00a7 42\u2014\nWhere the court gives equal stress to the respective contentions of the parties, the charge will not be held objectionable on the ground that the court necessarily consumed more time in stating the contentions of the one party than it did of the other.\n9. Automobiles \u00a7 46\u2014\nWhere the court in stating abstract rules of law charges that the violation of certain motor vehicle statutes constitutes negligence or contributory negligence, without relating such violations to the question of proximate cause, but in each instance in which the law is applied to the evidence correctly instructs the jury upon the element of proximate cause, and the charge is clear and understandable when read contextually, it will not be held for error.\nAppeal by plaintiff from Armstrong, Jat April 1957 Civil Term, of Davidson.\nCivil action instituted by plaintiff to recover damages for the alleged wrongful death of Ruth L. Workman, intestate of plaintiff, as result of injury sustained in overturning of automobile operated by her, \u2014 proximately caused by alleged negligence of defendant.\nThe case was before this Court on former appeal \u2014 opinion therein granting a new trial for error pointed out is reported in 245 N.C. 500, 96 S.E. 2d, 421, reference to which is made for summary of basic factual situation.\nUpon retrial in Superior Court both plaintiff and defendant offered evidence, and the case was submitted to the jury upon these three issues:\n\u201c1. Was the plaintiff\u2019s intestate, Ruth L. Workman, injured and killed by the negligence of the defendant, Henry G. Regan, as alleged in the complaint? Answer: Yes.\n\u201c2. If so, did plaintiff\u2019s intestate, Ruth L. Workman, by her own negligence, contribute to her said injuries and death, as alleged in the answer? Answer: Yes.\n\u201c3. What amount of damages, if any, is the plaintiff entitled to recover of the defendant? Answer: .\u201d\nThe first two the jury answered as indicated.\nAnd upon the verdict so found the court entered judgment that plaintiff have and recover nothing of the defendant, and that the action be dismissed.\nPhilip R. Craver, Charles W. Mauze for plaintiff appellant.\nDeal, Hutchins & Minor for defendant appellee." }, "file_name": "0199-01", "first_page_order": 241, "last_page_order": 246 }