JOHNSON COTTON CO. OF CONWAY v. Ford

79 S.E.2d 389 (1954)

239 N.C. 292

JOHNSON COTTON CO. OF CONWAY, Inc. v. FORD et al.

No. 684.

Supreme Court of North Carolina.

January 15, 1954.

*390 W. A. Johnson, Wilmington, Varser, McIntyre & Henry, Lumberton, for defendants Ford, appellants.

John S. Butler, St. Pauls, F. D. Hackett, Jr., Lumberton, for defendant Brigman, appellee.

DEVIN, Chief Justice.

The determinative question of fact upon which the case turned was whether the driver of the truck of defendants Ford as he approached the bridge on the highway, and just as defendant Brigman was emerging therefrom, drove the truck to the left of the center of the highway so as to make it necessary for Brigman to turn to his right and drive off the pavement to avoid being struck by the truck.

While the truck did not come in contact with either of the automobiles which collided, it was the contention of the plaintiff and the defendant Brigman that the driver of the truck was negligent in driving to the left of the center of the highway in meeting an automobile coming from the opposite direction, and that his negligence in this respect was the real efficient cause of the injuries sustained. The jury adopted this view and returned verdict against the defendants Ford on the issues submitted. From the judgment rendered thereon the defendants Ford have appealed assigning numerous errors in the rulings of the trial judge.

The appellants excepted to the court's admission of certain testimony from Sheriff McMillan, who was offered as a witness by defendant Brigman. This witness testified that he reached the scene shortly after the collision occurred, and that he heard McLellan (the driver of the plaintiff's automobile) make the statement that "the truck ran the car off the road." It was argued that this statement was incompetent, hearsay and prejudicial. It appeared, however, that McLellan had testified, as a witness for the plaintiff, that he had traveled behind the truck for two miles before the collision, and noticed it was being driven on its right side of the highway in a normal way at about 45 miles per hour; that on the down-grade as it approached the bridge the truck driver increased its speed; that "after he went down the hill and turned the curve, I don't know how he was driving then."

After the plaintiff rested, the defendants Ford, with other testimony, offered a written *391 statement by McLellan to the effect that he drove plaintiff's automobile about 75 yards in the rear of the truck, and that near the bottom of the grade, just before beginning the curve to the right, as the truck was about to go onto the bridge, it slowed up a bit. "As the truck was going onto the bridge I saw a Plymouth car coming toward me on the east shoulder of the highway. He was off on the shoulder when I first saw it about 75 yards in front of me and he looked to me to be gradually going off the fill * * * I saw the truck approaching the bridge and noticed the truck stayed on the right side as he approached the bridge, although I'm not sure of the position of the truck when he entered on the bridge."

Thereafter the defendant Brigman offered the testimony of Sheriff McMillan that he heard McLellan say "the truck ran the car off the road," to which the defendants Ford objected. The court overruled the objection and admitted this testimony, not against the defendants Ford, but only for the purpose of contradicting the witness McLellan. The defendants Ford excepted on the ground that this statement was incompetent for any purpose.

The objection to this evidence cannot be sustained. State v. Britt, 225 N.C. 364, 34 S.E.2d 408; Hubbard v. Southern R. Co., 203 N.C. 675, 166 S.E. 802; Stansbury, sees. 46-47. It was competent for defendant Brigman to offer for the purpose of contradicting the testimony of McLellan that he had previously made a statement inconsistent with his testimony as offered by plaintiff and by the defendants Ford.

We have examined the other exceptions to the court's ruling in the admission and exclusion of testimony and find them without substantial merit. The motion of defendants Ford for judgment on nonsuit was properly overruled. Wallace v. Longest, 226 N.C. 161, 37 S.E.2d 112; Hoke v. Atlantic Greyhound Corp., 226 N.C. 692, 40 S.E.2d 345.

The appellants noted numerous exceptions to the court's instructions to the jury. In their brief they say "The court's charge, by the foregoing exceptions, is challenged throughout, except as to a few formal statements which did not affect the parties one way or the other." We have examined the court's charge to the jury in the light of these exceptions and are unable to perceive any material error therein which would justify the award of a new trial.

The jury's verdict on the evidence offered and the judgment thereon will not be disturbed.

No error.