Glenn v. Smith

142 S.E.2d 596 (1965)

264 N.C. 706

H. V. GLENN, Sr., Administrator of Herbert Vincent Glenn, Jr., Deceased, v. Brantley SMITH and Herbert Eugene Smith.

No. 776.

Supreme Court of North Carolina.

June 18, 1965.

*598 Everett, Everett & Everett, Durham, for plaintiff appellant.

Bryant, Lipton, Bryant & Battle, Durham, for defendant appellees.

DENNY, Chief Justice.

The appellant assigns as error the refusal of the court below to permit a traffic engineer, who was held by the court to be an expert in his field, to testify concerning his familiarity with a standard 1959 Ford automobile and whether or not he had an opinion as to whether a 1959 Ford automobile would "fishtail" (that is, swing to its left) under the conditions described by the witnesses.

Just what an automobile would or would not do in rounding a left curve involves many imponderables. How fast was the car being operated? Were the tires properly and evenly inflated? How much power was used in accelerating the car? Was the car otherwise in good mechanical condition? What was the condition of the road? *599 Did the road have any loose gravel or stones upon its surface? Were the respective cars in their proper lane immediately prior to the collision? et cetera. The evidence with respect to the last question was in sharp conflict.

The plaintiff offered evidence to the effect that the Ford car was never in the left lane of the road, that it never crossed the center line of Guess Road. On the other hand, the defendants offered evidence to the effect that the Ford car, when it was suddenly accelerated, jerked or "fishtailed" to its left and brushed the Lincoln car which was traveling in the left lane, causing the damages sustained by the plaintiff's intestate.

The opinion of a witness, even though he may be competent to testify as an expert, is not admissible as to matters within the ordinary experience of men. The jury is deemed capable of deciding such questions without the aid of opinion evidence. Great Eastern Casualty Co. v. Kelley (1917, Tex.Civ.App.), 194 S.W. 172. Most jurors are thoroughly familiar with the operation of automobiles, and are capable of determining what inferences the facts will permit or require. Tyndall v. Harvey C. Hines Co., 226 N.C. 620, 39 S.E.2d 828.

In Shaw v. Sylvester, 253 N.C. 176, 116 S.E.2d 351, this Court said:

"* * * A witness who investigates but does not see a wreck may describe to the jury the signs, marks, and conditions he found at the scene, including damage to the vehicle involved. From these, however, he cannot give an opinion as to its speed. The jury is just as well qualified as the witness to determine what inferences the facts will permit or require. Tyndall v. Harvey C. Hines Co., 226 N.C. 620, 39 S.E.2d 828. "The qualified expert, the nonobserver, may give an opinion in answer to a proper hypothetical question in matters involving science, art, skill and the like. The plaintiff contends Sgt. Etherage placed himself in this expert category by having investigated more than 400 wrecks. There is no evidence that wrecks follow any set or fixed pattern. An automobile, like any other moving object, follows the laws of physics; but which door came open first during the movement would depend upon the amount and direction of the physical forces applied, and the place of their application. There was no evidence the witness ever investigated an accident when both doors were open and both occupants thrown out. In this case neither the nonobserver nor the jury could tell who was the driver. Tyndall v. Harvey C. Hines Co., supra; Everart v. Fischer, 75 Or. 316, 147 P. 189; Burwell v. Sneed, 104 N.C. 118, 10 S.E. 152."

In our opinion, the expert testimony which the plaintiff sought to offer was properly excluded, and we so hold.

The plaintiff also assigns as error the admission of the adverse examination of John Slaughter, which was taken in the case of Mrs. J. R. Lasater, administratrix, v. Brantley Smith, Frances Carpenter, Carolyn Carpenter and John Slaughter, for the purpose of obtaining information necessary to enable the plaintiff in that case to prepare and file her complaint.

The plaintiff objected to the admission of this examination on the ground that at the time of the trial below John Slaughter was residing in Henderson, North Carolina, within forty miles of Durham. The objection was based upon the provisions of G.S. § 8-83, subsection 9. This statute provides that every deposition taken and returned in the manner provided by law may be read on the trial of the action or proceeding, or before any referee, in the following cases, and not otherwise:

"9. If the witness has been duly summoned, and at the time of the trial *600 is out of the State, or is more than seventy-five miles by the usual public mode of travel from the place where the court is sitting, without the procurement or consent of the party offering his deposition."

Ordinarily, an objection made upon certain grounds stated, only those stated can be made the subject of review upon appeal, except where the evidence is excluded by statute. McIntosh, North Carolina Practice and Procedure, 2nd Ed., Vol. II, § 1532, subsection 7, page 63, citing Presnell v. Garrison, 121 N.C. 366, 28 S.E. 409.

It is provided in G.S. § 1-568.24, "Use of deposition at trial.(a) Upon the trial of the action or at any hearing incident thereto, any party may offer in evidence the whole, but, if objection is made, not a part only, of any deposition taken pursuant to this article, but such deposition shall not be used as evidence against any party not notified of the taking thereof as provided by G.S. 1-568.14."

G.S. § 1-568.14 requires the examining party to give notice to all parties other than the party to be examined. This statute requires the notice to be delivered to the party five days before the examination or mailed to him ten days before the date of such examination, and the notice shall consist of a copy of the order of examination. There is nothing in the record before us to indicate that the plaintiff herein was a party to the suit in which the examination of Slaughter was procured at the time the order for the examination of the defendant Slaughter was issued. Therefore, since the plaintiff was not a party to such action, and had no opportunity to cross examine Slaughter at the time of his examination, it was error to admit such examination in evidence in the trial of this action, and for such error there must be a new trial.

We call attention, however, to the fact that the trial judge was not informed at the time of the trial below that Slaughter's examination was not taken in the case then being heard. If the trial judge had been informed of this fact, doubtless he would have excluded the examination.

Since there must be a new trial, we deem it unnecessary to discuss the remaining assignments of error which may not recur on the next trial.

New trial.