Yost v. Hall , 233 N.C. 463 ( 1951 )

BarNhill, J.

Tbe absence of direct testimony in respect to tbe circumstances surrounding tbe collision is provocative of mucb speculation as to just wbat did happen. Sucb speculation might well generate contradictory surmises. But we are interested only in the fact situation disclosed by sucb evidence as tbe parties were able to produce.

If tbe two automobiles approached tbe intersection at approximately tbe same time, then it was tbe duty of tbe defendants to yield tbe right of way to Yost. This, for two reasons : (1) tbe Yost car was to their right, G.S. 20-155 (a), and (2) they were traveling on tbe servient highway, G.S. 20-158.

There was no eyewitness account of tbe collision. In appraising tbe testimony for tbe purpose of determining whether there is any evidence of negligence on tbe part of tbe defendants, in that they breached this duty, sufficient to warrant tbe submission of tbe cause to a jury, we are driven in large measure — though not altogether — to tbe consideration of tbe physical facts developed by tbe testimony. Even so, physical facts are sometimes more convincing than oral testimony. Powers v. Sternberg, 213 N.C. 41, 195 S.E. 88.

Tbe court, in tbe absence of proof to tbe contrary, may not assume that either motorist was operating bis vehicle in excess of tbe legal limit permitted under tbe circumstances. We review tbe evidence with that in mind.

Tbe two automobiles collided within tbe intersection. They arrived at tbe same point at tbe same time. Their approach was so timed that both could not proceed in safety. If neither stopped, a collision was inevitable.

The Hall car evidently entered tbe intersection when tbe Yost vehicle was at least four feet away. But tbe fact a motorist on a servient road reaches tbe intersection a bairsbreadtb ahead of one on tbe dominant highway does not give him tbe right to proceed. It is bis duty to stop and yield tbe right of way unless tbe motorist on tbe dominant highway is a sufficient distance from tbe intersection to warrant tbe assumption that be can cross in safety before tbe other vehicle, operated at a reasonable speed, reaches tbe crossing. S. v. Hill, ante, 61, and cases cited.

Shortly after tbe accident Broaddus, in tbe presence of Hall, made tbe statement that be did not see tbe railroad track or tbe stop sign. They were in a burry. He told tbe officer that be did not remember seeing tbe Yost car until be bit it. When asked if be saw the stop sign, be replied: “I won’t say I did nor I won’t say I didn’t; I don’t remember seeing the sign.” While each defendant testified bis injury produced a state of retrograde amnesia and that is the reason they cannot say whether they saw the sign or the Yost car, no such qualification was attached to these statements made shortly after the collision. So then, it was for the jury to say whether the statements amounted to nothing more than a disavowal of memory.

But the defendants insist the fact the Yost automobile continued on for a distance of ninety feet after the collision indicates that Yost was traveling at an excessive speed at the time. Standing alone and unqualified by any other circumstance, this fact might compel, or at least permit, that inference. This we need not now decide, for it appears that Yost was in a dazed or unconscious condition, was mortally wounded, and died in less than twenty hours after the collision. It may well be he was in no condition to apply his brakes or make any other effort to stop his vehicle. The distance he traveled after the collision, under the circumstances here disclosed, was for the consideration of the jury. Bailey v. Michael, 231 N.C. 404, 57 S.E. 2d 372.

The evidence, considered in the light most favorable to plaintiff, clearly warrants the inference that the two automobiles approached the intersection at approximately the same time, and defendants failed to see, or seeing, failed to heed the presence of Yost approaching the intersection on the dominant road. Reeves v. Staley, 220 N.C. 573, 18 S.E. 2d 239.

The jury’s verdict on the first three issues is determinative. Any exceptions or assignments of error relied on by defendants which do not challenge the validity of the trial in respect to the verdict as rendered may be by-passed. Even if they point out error in the trial, the error must be deemed immaterial and harmless. Winborne v. Lloyd, 209 N.C. 483, 183 S.E. 756; Randle v. Grady, 228 N.C. 159, 45 S.E. 2d 35; In re Will of Kestler, 228 N.C. 215, 44 S.E. 2d 867; Coach Co. v. Motor Lines, 229 N.C. 650, 50 S.E. 2d 909; Call v. Stroud, 232 N.C. 478, 61 S.E. 2d 342.

Certain of our highways are built and maintained in part out of funds contributed by the Federal government. They form links in an interstate system and are designated as U. S. highways. They are, nonetheless, State highways under the supervision and control of the State Highway and Public Works Commission. G.S. 20-158 is applicable to these just as it is to other State highways. The contention that Highway 52 was not a dominant or through highway for want of authority in the State Commission to so designate it is without validity.

When a person survives an accident but is unable to testify concerning the events leading to the accident, by reason of the loss of memory resulting from injuries be sustained in tbe accident, it will be presumed, in tbe absence of evidence to tbe contrary, tbat be exercised due care. Anno. 141 A.L.R. 872. Tbe defendants seek to invoke tbis rule and assert tbat tbe court’s charge in respect thereto deprives them of tbe benefit thereof. In tbis we cannot concur.

Presumptions of tbis type are created to fill a complete hiatus in tbe testimony. They are “bats of tbe law, flitting in tbe twilight but disappearing in tbe sunshine of actual facts.” Mockowik v. Railroad, 196 Mo. 550. If there is any evidence to tbe contrary, tbe presumption fades out of tbe picture. It cannot be accorded evidential value or probative force, or be weighed against tbe evidence offered. In re Will of Wall, 223 N.C. 591, 27 S.E. 2d 728.

Tbe rule has no application here for tbe reason there is evidence of negligence on tbe part of defendants to be considered by tbe jury. On tbis record tbe loss of memory, if it be a fact — and tbat was for the jury to decide — should not be considered either in favor of or against tbe defendants on tbe issue of negligence.

In considering tbis rule it is well to note tbat tbe absence of evidence of negligence on tbe part of one of tbe parties involved in a collision cannot be used to create a presumption of negligence on tbe part of tbe other.

In concluding its charge on tbe first issue, tbe court instructed tbe jury as follows:

“Upon tbe evidence you are instructed tbat if tbe plaintiff has satisfied you from tbe evidence and by tbe-greater weight thereof tbat tbe defendants, in tbe operation of their automobile were negligent, tbat is, tbe defendants Hall and' Broaddus, and has further satisfied you from tbe evidence and by tbe greater weight thereof tbat such negligence was tbe proximate cause of injury and death of tbe plaintiff’s intestate and injury to bis property,' then it would be your duty to answer tbat issue yes. If tbe plaintiff has failed to so satisfy you, it will be your duty to answer tbat issue no.” '

Tbis instruction is in general terms and is defective in tbat it fails to point out tbe particular acts of negligence alleged upon which plaintiff must rely, and does not state tbe facts, supported by evidence, which, if found to be true, would constitute negligence on tbe part of tbe defendants. Standing alone, it might be'beld for error in tbis respect. Chambers v. Allen, ante, 195. A consideration of tbe charge as a whole, however, leads to tbe conclusion tbe court below pointed out with sufficient particularity tbe acts of negligence relied on, tbe evidence in support thereof, and tbe facts necessary to be found by tbe jury to support an affirmative answer to tbe first issue. When it instructed tbe jury “tbat if tbe plaintiff has satisfied you . . . tbat tbe defendants, in tbe operation of their automobile were negligent . . .,” they, as intelligent men, considering what the court had theretofore said, must have understood that the court meant “negligent in the manner alleged and as heretofore particularized by the court.”

For the purpose of establishing the employer-employee relation existing between the additional defendant, Retail Credit Company, and Yost, defendants offered evidence tending to show that the credit company was paying or had paid compensation to plaintiff under the Workmen’s Compensation Act. Plaintiff, in rebuttal, testified that she understood the law under which she would have to reimburse the credit company out of any recovery she might obtain. There was some comment in the argument on this evidence. In respect thereto the court, in charging the jury on the third issue, instructed it as follows:

“Now, gentlemen, in this connection, before I give you that rule, I want to give you a further caution. The evidence which has been offered and talked about with relation to compensation and what becomes of it, who gets it or who doesn’t, if your verdict as to damages should in anywise be affected by that evidence, then this trial would not represent justice, that would be a mistake.

“Now if there is any question in the mind of any juror as to whether you can follow the instructions which I shall presently give you as to the measure of damages, the yardstick that you have to apply to this evidence, — if there is any question in your mind as to this evidence as to compensation, if you will suggest it now I will withdraw a juror and we will try the case over and we won’t have any further trial. I want that assurance.”

In this the court was careful to caution the jury that any evidence regarding the payment to and receipt by plaintiff of compensation under the Workmen’s Compensation Act was not to be considered by them on the issue of damages. The statement was correct. The caution was timely. It is as favorable to'the defendants as to the plaintiff. Certainly, defendants were not entitled to any credit for the amounts so paid. That being true, the evidence had no bearing on the issue of damages.

In instructing the jury on the third issue, the court gave the correct rule on measure of damages to be applied in wrongful death cases. After the jury had been out for some time, it returned to the courtroom and the foreman stated to the court: “We would like for you to explain the yardstick for measuring damages.” Thereupon the court again gave the correct rule. The foreman then stated: “What we want to know is how to determine the cash value.” In answer thereto the court explained the rule in the language of our decisions. The foreman, apparently still uncertain that the jury understood the rule as stated, said: “How are we to determine the present cash value of that worth?” To this the court replied: “The formula which I have given yon is the rule laid down by the Supreme Court, and I doubt that I should undertake to elaborate upon it further.” The jury retired.

“The court then recalled the jury and gave a mathematical rule for the computation of present cash value which was agreed to by counsel for all parties.”

If there was any error in the instruction on damages respecting the rule for ascertaining the present cash value of the net amount the jury should find the deceased would have earned but for his untimely death, or in declining to elaborate further on the rule, it was rendered harmless by the action of counsel in submitting, or having the court submit, a mathematical rule to which they agreed. Just what that rule was, the record does not disclose. We must presume that it was correct and that it answered the question of the foreman to the satisfaction of the members of the jury.

This brings us to the most troublesome exception in the record. During his argument to the jury, Mr. Shuford, of counsel for plaintiff, drew a diagram on the blackboard for the purpose of showing that during the next five years defendants may earn some $75,000, and compared that to the situation of the widow. On objection and motion for new trial, the court cautioned the jury that the financial situation of defendants, so far as capacity to respond in damages is concerned, was not a matter for the jury to consider; that it should disregard the argument and render its verdict under the instructions of the court without regard to the comparative positions of the parties or the capacity of the defendants to earn money, and that the argument was improper and should be erased from their minds.

Again, later, after some further discussion of arguments made by counsel, the court instructed the jury:

“Gentlemen of the jury, any pitiable situation in which the widow may find herself and any pitiable situation which the minor child may be found is not a circumstance to affect in the least your verdict in this ease. The Court will give you the scale that will be necessary for you to use in measuring any damage which may be recovered. The Court will give you the formula to apply if and when you come to apply the rule, and the Court will ask you to abide the rules as they are given and as they are announced by the Court. It is proper, gentlemen, for lawyers for all parties to argue their cases and to tell you what their conception of the law is, but in the final analysis it is the duty of the Court to tell you what the law is, and when the Court tells you what the law is and what the rules are, it is your duty under oath, gentlemen, to follow just those rules. If there is any question whether the jury can do that, I will withdraw a juror and direct a mistrial now.”

Tbe argument made by counsel exceeded tbe bounds of propriety. It constituted sucb an appeal to tbe sympathy of tbe jury as to warrant a new trial unless its prejudicial effect was fully effaced by tbe court. For tbat reason, we bave weighed tbe question at some length. Tbe deceased was a young man, robust and active. He was a highly satisfactory employee. His life expectancy, bis ability, and bis earning capacity warranted a finding tbat tbe present cash value of bis prospective net income was substantial. Under all tbe circumstances, we are unprepared to say tbat tbe recovery may be considered excessive or above tbat to be expected under tbe evidence offered. .It would seem, therefore, tbat tbe caution of tbe careful and painstaking judge who presided at tbe trial served to remove from tbe minds of tbe jurors any prejudicial impression aroused by tbe argument.

We bave carefully examined the other exceptive assignments of error to which we bave not specifically referred. They fail, either severally or in combination, to disclose any sufficient cause for disturbing tbe verdict.

In tbe trial we find

No error.