{ "id": 8560428, "name": "LILLIAN KEY v. WILLIAM THOMAS WOODLIEF", "name_abbreviation": "Key v. Woodlief", "decision_date": "1962-12-12", "docket_number": "", "first_page": "291", "last_page": "295", "citations": [ { "type": "official", "cite": "258 N.C. 291" } ], "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": "93 S.E. 2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 149", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219510 ], "opinion_index": 0, "case_paths": [ "/nc/244/0149-01" ] }, { "cite": "119 S.E. 2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "254 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627220 ], "opinion_index": 0, "case_paths": [ "/nc/254/0553-01" ] }, { "cite": "124 S.E. 2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "256 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574013 ], "opinion_index": 0, "case_paths": [ "/nc/256/0561-01" ] }, { "cite": "99 S.E. 2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627596 ], "opinion_index": 0, "case_paths": [ "/nc/246/0599-01" ] }, { "cite": "100 S.E. 2d 81", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627982 ], "opinion_index": 0, "case_paths": [ "/nc/246/0655-01" ] }, { "cite": "85 S.E. 2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609699 ], "opinion_index": 0, "case_paths": [ "/nc/241/0321-01" ] }, { "cite": "94 S.E. 2d 821", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219553 ], "opinion_index": 0, "case_paths": [ "/nc/244/0666-01" ] }, { "cite": "108 S.E. 2d 900", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "250 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624192 ], "opinion_index": 0, "case_paths": [ "/nc/250/0435-01" ] } ], "analysis": { "cardinality": 562, "char_count": 11335, "ocr_confidence": 0.496, "pagerank": { "raw": 2.282791800178463e-07, "percentile": 0.7853620037307194 }, "sha256": "7a809986dce4521fdcf71d5d35c8f003de6245324e30556336c05f50d046e24a", "simhash": "1:213aa822907fb56d", "word_count": 1940 }, "last_updated": "2023-07-14T19:21:31.620483+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LILLIAN KEY v. WILLIAM THOMAS WOODLIEF." ], "opinions": [ { "text": "Higgins, J.\nThe jury\u2019s negative finding on the issue of negligence ends the case unless the plaintiff is able to show reversible error on that issue. Any errors involving contributory negligence or damages, unless they likewise materially affect the first issue, are nonprejudicial.\nThe assigned errors requiring discussion are (1) the exclusion of the witness Garner\u2019s testimony that the defendant\u2019s speed was 50 miles per hour, and (2) the admission of the highway patrolman\u2019s testimony that the attending physician made the statement while he was treating the plaintiff that \u201cshe was loaded.\u201d\n1. Mr. Garner testified he saw the lights of defendant\u2019s vehicle when it was 100-150 feet away. He did not say he observed them for any distance. If it be admitted a witness may qualify himself to testify as to the speed of an approaching vehicle by merely seeing the lights, the observation must be for such distance as to enable him to do more than hazard a guess as to speed. In this case the witness did not qualify himself to testify as to speed. Therefore, the testimony was without probative force, clearly incompetent, and properly excluded. Hudson v. Transit Co., 250 N.C. 435, 108 S.E. 2d 900; Fleming v. Twiggs, 244 N.C. 666, 94 S.E. 2d 821; State v. Becker, 241 N.C. 321, 85 S.E. 2d 327.\n2. At the time of the mishap the plaintiff and her companion Garner were on their way to visit in the home of a relative. It was near midnight. They had been together much of the day. The evidence strongly indicated that Garner was intoxicated. The plaintiff denied that she, or Garner to her knowledge, had been drinking. The physician who testified for the plaintiff as to her injuries was asked on cross-examination if -the plaintiff was intoxicated. He stated he did not examine her for intoxication and did not know. He denied making the statement, \u201cShe was loaded.\u201d The highway patrolman, a witness for the defendant, was permitted, over objection, to contradict the doctor by testifying the doctor said \u201cshe was loaded.\u201d We need not quibble about the meaning of \u201cloaded.\u201d Among the jurors, no doubt at least one will remember the jingle:\n\u201cWhen going up or down the road,\nA little jug of liquor makes a big man a load.\u201d\nWhether the plaintiff was \u201cloaded\u201d presented a collateral matter. When the doctor denied making the statement the defendant was bound by the 'answer. The testimony of the patrolman as to what the doctor said was hearsay and should have been excluded. Gurganus v. Trust Co., 246 N.C. 655, 100 S.E. 2d 81; Jones v. Bailey, 246 N.C. 599, 99 S.E. 2d 768. However, was the evidence sufficiently prejudicial to justify sending the case back for a new trial? Did the evidence adversely affect the plaintiff\u2019s efforts to establish defendant\u2019s negligence?\nA careful review of the charge on the first issue discloses that at no time did the court refer to any contention or suggestion the plaintiff was drinking. Not even Gamer\u2019s condition was alluded to as having any bearing on defendant\u2019s negligence. The only reference to intoxication in the charge related to the issue of plaintiff\u2019s contributory negligence. The court thus stated the defendant\u2019s contentions: \u201c. . . That she was walking along with Garner and that he was drinking and that he and she . . . were not paying attention and that they walked right into, the lane of traffic.\u201d The court stated the plaintiff\u2019s contentions: \". ... That you should find from.the evidence that she did cross the highway carefully, 'Cautiously, lawfully, and that she was normal, that she. had not been drinking anything.\u201d\nThere is no \u2022 evidence in the record the defendant at any time argued or contended the plaintiff was under the influence of liquor. The defendant\u2019s contention on the issue of contributory negligence was that Garner was drinking. Of this, there was ample evidence. The plaintiff was not prejudiced as a result of the contributory negligence issue for the simple reason that issue was not answered. If the jury had found the defendant guilty of negligence and the plaintiff guilty of contributory negligence, a more serious question would be presented.\nThe physical evidence strongly corroborated the defendant\u2019s contention that he was not speeding; that he remained in his lane of traffic; that the vehicle moved only 35-40 feet after contact; that .it was at a 45-degree angle to the left, still on the highway; that all the skid marks were on the highway; and that dents on the right front light and the right side of the car indicated that the plaintiff was on the hard surface and the defendant tried, as he testified, to avoid her by turning to the left. Articles from plaintiff\u2019s purse were scattered on the highway. She was partially on the hard surface after the impact. The physical evidence, corroborating as it did the defendant\u2019s version of the case, was decisive. The disagreement between the highway patrolman and the doctor as to whether the latter said \u201cshe was loaded\u201d was not enough materially to discolor the clear stream of evidence favorable to the defendant.\nA presumption exists that the judgment is correct. Error warranting a reversal or a new trial must amount to the denial of some substantial right. Rubber Co. v. Distributors, Inc., 256 N.C. 561, 124 S.E. 2d 508; Jenkins v. Electric Co., 254 N.C. 553, 119 S.E. 2d 767; In re Gamble, 244 N.C. 149, 93 S.E. 2d 66; Strong\u2019s N. C. Index, Vol. 1, \u201cAppeal and Error,\u201d \u00a7\u00a7 39-41, and the same sections in the Supplement to Vol. 1.\nThe record shows technical error which in view of the whole case did not have material bearing on the question of defendant\u2019s negligence. We conclude there was, in law,\nNo error.", "type": "majority", "author": "Higgins, J." } ], "attorneys": [ "Ottway Burton, IAnwood T. Peoples, for plaintiff, appellant.", "Jordan, Wright, Henson & Nichols, and G. Marlin Evans, by G. Marlin Evans, for defendant, appellee." ], "corrections": "", "head_matter": "LILLIAN KEY v. WILLIAM THOMAS WOODLIEF.\n(Filed 12 December 1962.)\n1. Automobiles \u00a7 38; Evidence \u00a7 15\u2014\nWhere a witness testifies that be saw the lights of an approaching vehicle but does not state that he had observed the movement of the lights for any length of \u00a1time or that he had more than a fleeting glance at them, the witness fails to qualify himself to testify as to the speed of the approaching vehicle, and his testimony as to speed is without probative force and is incompetent.\n2. Evidence \u00a7\u00a7 28, 54\u2014\nWhen a party elicits testimony from a physician that he did not hnow whether plaintiff was intoxicated and the intoxication of plaintiff relates to a collateral matter, the party is bound by the physician\u2019s answer, and testimony of another witness that the physician had made a statement to \u2022the effect that plaintiff was \u201cloaded\u201d at the time is incompetent as hearsay.\n3. Appeal and Error \u00a7 41\u2014\nWhere the jury answers the issue of negligence in the' negative and does not answer the issue of contributory negligence and damages,' the admission of incompetent evidence to the effect that plaintiff was intoxicated at the time will not be held for prejudicial error; since such evidence relates only to the unanswered issue of contributory negligence' and cannot have affected .the answer to the determinative, issue .of negligence, there being ample evidence tending to show the absence.of \u2022 negligence on .the- part of defendant and defendant not having argued or contended that the plaintiff was under the influence of liquor at the time.\n4. Appeal and Error. \u00a7 39\u2014\nThe judgment of the lower court is presumed correct and the burden is utpon appellant to stow error amounting to the denial of some substantial \u00a1night.\nAppeal by plaintiff from Olive, J., April, 1962 Term, RaNdolph Superior Court.\nCivil action to recover damages plaintiff alleged she sustained as a result of the defendant\u2019s negligent operation of his automobile.\nThe plaintiff alleged and offered evidence tending to show that on the night of August 6, 1960, just before midnight, she was walking north on the west shoulder of Highway No. 220 when the defendant, driving his automobile south at great speed, ran off the paved portion of the highway, striking her, and inflicting serious and permanent injuries.\nThe defendant, by answer, denied all allegations of negligence on his part alleged the sole cause of the plaintiff\u2019s injuries was her own negligence in suddenly stepping in front of his moving vehicle at a place other than a crosswalk, leaving him insufficient time to avoid the accident. By way of further defense, he alleged the plaintiff\u2019s own negligence contributed to her injury.\nMr. C. A. Garner, as a witness for plaintiff, testified he was walking with her on the shoulder of the road. He saw the lights of the defendant\u2019s vehicle approaching him. \u201cIt might have been 100 to 150 feet away.\u201d He did not further qualify himself to testify as to speed. He did not undertake to say that he observed the movement of the lights, or that he had more than a fleeting glance at them. The court sustained the objection and refused to permit him to say that in his opinion the vehicle was moving 50 miles per hour. He admitted on cross-examination that the vehicle stopped on the surface of the road within 35 or 40 feet beyond the impact. He further testified he heard the defendant say, \u201cThat he didn\u2019t know what happened; that he didn\u2019t see her.\u201d\nHe further testified that after the contact Mrs. Key\u2019s head was on the paved portion of the highway. According to the defendant\u2019s evidence, her head and shoulders were on the pavement.\nThe defendant testified he was driving not more than 40 miles per hour when he saw Mrs. Key about 40 feet in front and in his lane of traffic. He applied his brakes, tried to cut to the left, but the right side of his vehicle \u201cmore or less glanced Mrs. Key, knocking her down.\u201d\nAfter the accident the defendant\u2019s vehicle stopped on the hard surface at an angle of about 45\u00b0. The skid marks were only a few feet long and all on the surface. Coins and other articles from the plaintiff\u2019s purse were on the highway. As a result of the contact there was a small dent in the chrome border around the right light and a similar small dent in the body near the right door. The defendant and 'his witness testified his vehicle never at any time left the hard surface of the highway.\nThere was evidence that the plaintiff\u2019s witness Garner, Who had been with her much of the day, was at the time of the accident under the influence of alcohol. This he denied. The physician who treated the plaintiff for the injury testified he did not examine her \u201con the point of any intoxication\u201d \u2014 he did not comment at the time about the patient being \u201cloaded.\u201d He didn\u2019t know whether she was intoxicated or not.\nThe highway patrolman who investigated the accident testified that he talked to the plaintiff\u2019s witness Garner who stated that he and Mrs. Key were crossing the road and that she was hit by a car \u2014 she hit him and knocked him down. He said he never did see the car. The patrolman testified, over objection, that he talked with the physician at the hospital while he was treating Mrs. Key and, in response to an inquiry about her condition, the doctor replied, \u201c . . . she was loaded.\u201d\nThe court submitted issues of negligence, contributory negligence, and damages. The jury answered the first issue, no, and left the other unanswered. From a judgment dismissing the action, the plaintiff appealed.\nOttway Burton, IAnwood T. Peoples, for plaintiff, appellant.\nJordan, Wright, Henson & Nichols, and G. Marlin Evans, by G. Marlin Evans, for defendant, appellee." }, "file_name": "0291-01", "first_page_order": 331, "last_page_order": 335 }