Karpf v. Adams , 237 N.C. 106 ( 1953 )

74 S.E.2d 325 (1953) 237 N.C. 106

KARPF
v.
ADAMS et al.
RUNYON
v.
ADAMS et al.

No. 240.

Supreme Court of North Carolina.

January 30, 1953.

Everette L. Doffermyre, Dunn and Wilson & Johnson, Lillington, for plaintiff appellees.

Neill McK. Salmon, Lillington and Robert H. Dye, Fayetteville, for defendant appellants.

James MacRae, Fayetteville, for defendant Nober, appellee.

BARNHILL, Justice.

There are twenty-nine exceptive assignments of error in the record. Those not brought forward and discussed in appellant's brief are deemed to be abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 562; State v. Avery, 236 N.C. 276, 72 S.E.2d 670; Brown v. Ward, 221 N.C. 344, 20 S.E.2d 324; Merchant v. Lassiter, 224 N.C. 343, 30 S.E.2d 217.

There are other assignments of error which are brought forward in the brief "in support of which no reason or argument is stated or authority cited." To these Rule 28, supra, likewise applies.

The evidence offered by plaintiffs clearly required the submission of issues to the jury. The conflicts of testimony were for the twelve, and not the court, to consider in finding the facts. Council v. Dickerson's, Inc., 233 N.C. 472, 64 S.E.2d 551; Gold v. Kiker, 216 N.C. 511, 5 S.E.2d 548; Hughes v. Robert G. Lassiter & Co., 193 N.C. 651, 137 S.E. 806; Furlough v. Nash County Highway Commission, 195 N.C. 365, 142 S.E. 230.

During the selection of the jury, counsel for defendant Nober stated to the jury that this was one of a series of accidents of which there were eleven. Appellant immediately objected and moved for a new trial. Thereupon, the presiding judge carefully and fully cautioned the prospective jurors that they should not permit the remark of counsel to influence their decision in these cases if they should be chosen as jurors, which caution was in part as follows: "The counsel are now determining whether or not you will be accepted as jurors to try a case in which there are two plaintiffs involved, and it has been stated to the Court at the outset that these two plaintiffs were injured in the same accident, and at the same time, and they are the injuries that the plaintiffs are suing for here, which is conceded arose out of the same transaction, the same time, and you will not consider any reference to any other accident at or about the same place, or time; you will disregard that and do not permit it in anyway to influence any verdict that you might render in these cases, if you should be chosen as a juror."

Having so cautioned the prospective jurors, the court denied the motion and appellant excepted. In this ruling we can perceive no substantial error.

When prospective jurors are being questioned by counsel in the selection of a jury to try a pending action, it is essential that they be informed as to the nature and purpose of the cause to the end that counsel may ascertain whether they, or any one of them, have information, or have formed an opinion, which might disqualify them or prompt counsel to exercise their right of challenge. At times this necessitates the statement of facts which may, at least on the surface, appear to be prejudicial to the adversary parties. Even so, it is a necessary preliminary part of a trial by jury.

While the exercise of the right to seek this type of information rests largely in the discretion of the trial judge and should be carefully supervised by him, we perceive no abuse of discretion or invasion of rights of the appellant here.

Perhaps in giving the number of accidents which had occurred at the same place, counsel inadvertently exceeded the bounds of propriety. If so, the very careful caution of the judge was sufficient to remove any prejudicial effect thereof.

In this connection we may note that counsel for appellant, if they desired, had the right to examine the jurors concerning the impression the remark had made on their minds. Yet the record fails to disclose that they challenged or attempted to challenge any juror by reason thereof.

The evidence of similar accidents which happened on the morning of 19 March under approximately the same circumstances at the place where plaintiffs were injured was admitted over the objection and exception of appellant. The assignments of error directed to these exceptions afford no grounds for a new trial.

As a general rule, evidence of other accidents or occurrences is not competent and should not be admitted. 20 A.J. 278. But there are clearly defined and well-recognized exceptions to this rule.

Evidence of other similar accidents or injuries at or near the same place and at approximately the same time, suffered by persons other than the plaintiff, are competent: "(1) To show the existence of a defective or dangerous condition * * * and the dangerous character of the place of injury * * *." 20 A.J. 282; Annotation 65 A.L.R. 380; 81 A.L.R. 686; Alcott v. Public Service Corp., 78 N.J.L. 482, 74 A. 499, 32 L.R.A.,N.S., 1084; City of Lebanon v. Graves, 179 Ky. 749, 199 S.W. 1064, L.R.A.1918B, 1016; Texas & P. R. Co. v. Watson, 190 U.S. 287, 23 S. Ct. 681, 47 L. Ed. 1057.

"Evidence of similar occurrences is admitted where it appears that all the essential physical conditions on the two occasions were identical; for under such circumstances the observed uniformity of nature raises an inference that like causes will produce like results, even though there may be some dissimilarity of conditions in respect to a matter which cannot reasonably be expected to have affected the result." Perry v. Kelford Coca-Cola Bottling Co., 196 N.C. 690, 146 S.E. 805; Id., 196 N.C. 175, 145 S.E. 14; Broadway v. Grimes, 204 N.C. 623, 169 S.E. 194. The relevancy of this testimony is based upon the ground that the conditions and circumstances were substantially the same and the occurrences were separated only by a very brief interval of time. Conrad v. Shuford, 174 N.C. 719, 94 S.E. 424; Pickett v. Carolina & N. W. Ry., 200 N.C. 750, 158 S.E. 398; Etheridge v. Atlantic Coast Line R. Co., 206 N.C. 657, 175 S.E. 124.

The appellant assigns as error the following excerpt from the charge of the court:

"The defendant Construction Company calls attention to the fact that there has been some suggestion in respect to her loss of capacity to bear children, and her loss of capacity to have sexual relations; some reference has been made,—some contention has been made as to that, but the defendant Construction Company contends that no definite evidence as to that has been admitted by the court as competent evidence; that no doctor has testified to that effect, and that there is no definite evidence that the jury should consider indicating that she has been affected in that way, and that such contention arises upon no evidence that has been declared competent by the court in this case, and no doctor has given an opinion that she is handicapped and is not capable of having sex relations, or having children. The defendant Construction Company contends and insists that you should take that into consideration and find that contention is not founded upon evidence."

The exception is untenable.

Since the court below gave no such contention in behalf of Mrs. Karpf, we are not now required to say whether there is sufficient evidence to support a legitimate contention that the injuries she received are of such nature as to render her incapable of normal sex relations or of bearing children. It does not appear when or under what circumstances or by whom the contention was made. In any event, that was the time for the defendant to take notice thereof, except, and request a proper caution to the jury. Even if we concede there is some merit in the exception, it came too late.

Furthermore, it appears that it was the defendant who specifically called the matter to the attention of the court during the charge to the jury. If it desired further instruction as to the sufficiency of the evidence to support the contention and thus to raise a question of law for this Court to decide, it should have so requested at the time.

Moreover, the defendant does not challenge the correctness of the contention as given by the court. Its challenge is bottomed upon the argument that the court should have further charged there was no evidence to support the contention made by plaintiff. But an exception to what the judge did say does not, ordinarily, challenge its omission to charge further on the same aspect of the case. State v. Jones, 227 N.C. 402, 42 S.E.2d 465, and cases cited.

While appellant in its answer asserts that defendant Nober was and is primarily liable for any injuries suffered by plaintiffs, there is no evidence in the record which necessitated the submission of the issue based on this allegation tendered by the appellant. The jury has exculpated Nober. However, even if we concede that he was likewise guilty of negligence which was one of the proximate causes of the injuries sustained by plaintiffs, then he was a joint tort-feasor and liable as such. The fourth issue submitted adequately presented this phase of the case.

The appellant likewise tendered in each case an issue as follows:

"Was the negligence of the defendant Adams & Tate Construction Company insulated by the negligence of defendant Nober, as alleged in the answer of the defendant Adams & Tate Construction Company?"

Whether the independent negligent action of another insulates the negligence of a defendant in an action such as this is not an issue of fact. It is a question of fact directed to the question of proximate cause which, in turn, is an essential element of actionable negligence. Riggs v. Akers Motor Lines, 233 N.C. 160, 63 S.E.2d 197. Whether plaintiffs' injuries were proximately caused by the negligence of the defendant is the real and only issue which should not be dissected into questions directed—affirmatively or negatively—merely to its constituent elements. It follows that there was no error in the refusal of the court to submit the issue tendered.

We have carefully examined the other exceptive assignments of error brought forward and discussed in appellant's brief. None of them present any new or novel question of law or possess sufficient merit to require discussion. The appellant has had a fair trial. The judge has substantially reduced the awards made by the jury. It must abide the result.

We pause to note that the statement by this Court from time to time that exceptions are untenable or are without sufficient merit to require discussion or the like constitutes no criticism of or reflection upon counsel in the case. The diligence of attorneys prosecuting appeals to this Court in pointing out and calling to our attention rulings of the court below which may have unduly or improperly influenced the verdict rendered and the resulting careful examination thereof we are required to make in the light of the record as a whole constitute one of the great safeguards our judicial system provides to assure fair and impartial trials for all litigants.

In the trial below we find

No error.

PARKER, J., took no part in the consideration or decision of this case.