Carter v. Bradford , 257 N.C. 481 ( 1962 )

126 S.E.2d 158 (1962) 257 N.C. 481

Marie Thompson CARTER
v.
Joseph Charles BRADFORD.

No. 740.

Supreme Court of North Carolina.

June 15, 1962.

William E. Timberlake, Lumberton, Nance, Barrington, Collier & Singleton, by James R. Nance, Fayetteville, for plaintiff, appellee.

Johnson, Biggs & Britt, by I. M. Biggs, Lumberton, for defendant, appellant.

HIGGINS, Justice.

The trial court properly denied the motions for nonsuit. The evidence permitted an inference of defendant's negligence in closing the door to the vehicle while the plaintiff "was in the act of sitting down." At the time, her hand was on the cowl against which the heavy steel door fitted snugly. At the time of the injury, the afternoon of August 24, 1958, the plaintiff was 64 years old. Ordinary care under the circumstances would seem to require the defendant to ascertain the door could be closed in safety before closing it. This he did not do.

The defendant relies heavily on Patterson v. Moffitt, 236 N.C. 405, 72 S.E.2d 863, 34 A.L.R. 2d 169. The cases are readily distinguishable. In Moffitt the plaintiff was riding in the rear seat. It was dark. The defendant, driver, closed the left front door which caught the plaintiff's fingers as he was getting out by the left rear door. Here, it was daylight. The defendant closed the door by which the plaintiff had entered and at the time she was "leaning over" in the act of taking her seat.

The plaintiff had been a typist and bookkeeper for 35 years. She testified: "I have had to do everything with my left hand. * * * I can make very little use of my right hand at this time. * * * Prior to this time I was doing all my housework and everything with my right hand." The testimony to which objection was made involved her statement that from the date of her injury to the date of her testimony she had lost 90 per cent of the use of her right hand. The defendant insists this evidence involves the expression of opinion which plaintiff is not qualified to give and that the objection should have been sustained on that ground. However, a lay witness may express opinion about his present state of health, ability to do work, etc. Stansbury on Evidence, § 129; Lee v. New York Life Ins. Co., 188 N.C. 538, 125 S.E. 186. "The ability of a party to perform physical or mental labor is not a question of such exclusively technical significance as to permit expert testimony to be given conclusive effect." Bulluck v. Mut. Life Ins. Co., 200 N.C. 642, 158 S.E. 185.

The plaintiff, a typist and bookkeeper, was in a better position than any other person to know what she had done with her right hand prior to the injury and what she was able to do with it afterwards. The testimony does not attempt to project the disability or to anticipate its future effect. She was merely testifying as to how the injury had handicapped her to the date of the testimony. Its admission was not error.

The evidence presented issues for the jury. These were answered in favor of the plaintiff upon competent testimony and after a charge that is free from valid objection.

No error.