Emanuel Ex Rel. Emanuel v. Clewis , 272 N.C. 505 ( 1968 )

158 S.E.2d 587 (1968) 272 N.C. 505

Harry Ray EMANUEL, by his Next Friend, Leslie Emanuel, Plaintiff,
v.
Sarah CLEWIS, Defendant.

No. 856.

Supreme Court of North Carolina.

January 12, 1968.

Johnson, Hedgpeth, Biggs & Campbell, Lumberton, for defendant appellant.

Musselwhite & Musselwhite, Lumberton, for plaintiff appellee.

PER CURIAM.

The motion for judgment as of nonsuit was properly denied. The evidence of the plaintiff, taken in the light most favorable to him, as it must be upon such a motion, is sufficient to support a finding that the defendant, having invited a group of small children to ride in the bed of her truck, started it before the plaintiff had an opportunity to find a suitable place to sit down and, on a road known by her to be bumpy, reached a speed of 18 miles an hour within 100 to 150 feet from the starting point, and, at that speed, drove into a deep hole causing the truck to jolt and throw the plaintiff out. This is sufficient to carry the case to the jury on the issue of her negligence. A nonsuit on the ground of contributory negligence can be granted only when the plaintiff's own evidence leads inescapably to the conclusion that he was guilty of such negligence. The defendant's evidence tending to show contributory negligence cannot be considered upon the motion for judgment of nonsuit. Pruett v. Inman, 252 N.C. 520, 114 S.E.2d 360. The issues of negligence and contributory negligence were properly submitted to the jury, which answered them in the plaintiff's favor. It is not contended that there was any error in the instructions of the court to the jury concerning the principles of law by which it should answer these issues.

There was no error in permitting the plaintiff to testify as to the speed of the truck. He was standing in the truck bed and was clearly in a position to have an informed opinion as to its speed over the 100 to 150 feet which it traveled before he fell. A fourteen year old boy, shown to have a superior scholastic record is clearly capable of judging the speed of a motor vehicle in which he is a passenger. See: Murchison v. Powell, 269 N.C. 656, 153 S.E.2d 352; Lookabill v. Regan, 247 N.C. 199, 100 S.E.2d 521; Strong, North Carolina Index 2d, Automobiles, § 46.

It was not error to strike the defendant's testimony that the plaintiff was "an outstanding student." This was a conclusion based upon hearsay, the defendant not purporting to have personal knowledge of the plaintiff's scholastic record or of his rank in his class. In any event, the defendant was not prejudiced by this ruling since the plaintiff, himself, testified that he was one of the top ten students in his class and his grades were A and B. Obviously, he was a better than average student.

We have considered the assignments of error relating to the charge to the jury. Three of these are concerned with the court's statement of the contentions of the parties. The record does not indicate that any of the alleged errors therein were called to the court's attention at the time so as to enable the court to state the contentions correctly. Consequently, these alleged errors are not ground for a new trial. Rudd v. Stewart, 255 N.C. 90, 120 S.E.2d 601.

It was not error to instruct the jury that the negligent injury of a minor child gives rise to two separate causes of action, one in the child for pain and suffering and for loss of earning capacity after his twenty-first birthday, the other in the father for medical expenses and loss of earnings during minority. The jury was properly instructed that in awarding damages to the minor plaintiff it was not to consider such medical expenses or loss of earning capacity during minority. This was not an expression of opinion that the conduct of the defendant was such as to give rise to an action in the father for these losses, but was merely an elimination of these items from the calculation of the damages, if any, recoverable by the plaintiff in this action.

The exception to "the entire charge of the court" is a broadside exception and cannot be sustained. The remaining assignments of error are formal and are without merit.

No Error.