Miller Ex Rel. Miller v. Kennedy , 22 N.C. App. 163 ( 1974 )

205 S.E.2d 741 (1974) 22 N.C. App. 163

Terry Lynn MILLER, minor, by his next friend, Charlie Miller
v.
Harold Wayne KENNEDY et al.

No. 7419SC343.

Court of Appeals of North Carolina.

June 19, 1974. Certiorari Denied August 30, 1974.

Ottway Burton, Asheboro, for plaintiff appellant.

Henson, Donahue & Elrod, by Perry C. Henson and Sammy R. Kirby, Greensboro, for defendant appellees.

Certiorari Denied by Supreme Court August 30, 1974.

BRITT, Judge.

Although plaintiff has not properly grouped his exceptions and presented questions of law as required by the rules of this court, we have nevertheless, considered all exceptions brought forward and argued in his brief. We will discuss only the exceptions that appear to be of primary importance.

Plaintiff assigns as error the admission of testimony of defendant Michael Kennedy, who was riding in the automobile, to the effect that immediately prior to the collision, in his opinion, the automobile was traveling between 45 and 50 m. p. h. and the bicycle between 20 and 25 m. p. h. Plaintiff argues that since the witness testified that the bicycle was only 100 feet from the automobile when he first saw it, the witness was not qualified to give an opinion as to speed. The assignment has no merit.

The opinion of the witness as to the speed of the automobile clearly was admissible. The witness had ample opportunity to observe the speed of the automobile; the extent of his observation affects only the weight, and not the competency, of the testimony. Lookabill v. Regan, 247 N.C. 199, 100 S.E.2d 521 (1957); State v. Woodlief, 2 N.C.App. 495, 163 S.E.2d 407 (1968). 1 Stansbury's N.C. Evidence, Brandis Revision, § 131.

Regarding the opinion of the witness as to the speed of the bicycle, it has been held that observance of a vehicle for 50 feet was not too brief for a witness to state his opinion as to the vehicle's speed. Ray v. Membership Corp., 252 N.C. 380, 113 S.E. 2d 806 (1960). See also, Herring v. Scott, 21 N.C.App. 78, 203 S.E.2d 341 (1974). We adhere to those decisions.

Plaintiff assigns as error the refusal of the court to allow him to introduce into evidence the adverse examination of plaintiff and deposition of his father, taken on 17 October 1969. Plaintiff and his father testified at the trial, and plaintiff contends the adverse examination and deposition were admissible to corroborate their testimony. We find no merit in the assignment.

At the outset of our discussion of this assignment, we point out that under the new Rules of Civil Procedure, effective 1 January 1970 and applicable to litigation pending on that date (Ch. 954, 1967 Session Laws as amended by Ch. 803, 1969 Session Laws), what was formerly referred to as an adverse examination is now a deposition. G.S. § 1A-1, Rule 26. Therefore, hereinafter we will refer to plaintiff's adverse examination as a deposition.

First, we consider the assignment in the light of authorities applicable prior to 1 January 1970, the effective date of the new rules. In Gibson v. Whitton, 239 N.C. 11, 79 S.E.2d 196 (1953), the court held that application of the rules regulating the reception and exclusion of corroborating evidence, so as to keep its scope and volume within reasonable bounds, necessarily rests in large measure in the discretion of the trial judge. In Reeves v. Hill, 272 N.C. 352, 158 S.E.2d 529 (1968), the court held that the exclusion of the adverse examination of a party was not error when it appeared that the party testified to the same import at the trial; that it was within the sound discretion of the trial judge to stop the time-consuming and tedious process of reading the questions and answers in the adverse examination. Applying authorities predating 1 January 1970 to the question at hand, after reviewing the testimony of plaintiff and his father provided at the trial, and comparing that testimony with that contained in their depositions, we conclude that the trial judge did not abuse his discretion in excluding the depositions.

We now consider the assignment in the light of G.S. § 1A-1, Rule 26, which currently governs the taking and use of depositions. Pertinent portions of Rule 26 read as follows:

"(d) Use of depositions.—Any part or all of a deposition, so far as admissible under the rules of evidence, may be used at the trial . . . against any party who was present or represented at the taking of the deposition or who had due notice thereof, as follows:

(1) When the deponent is a party adverse to the party offering the deposition in evidence or is a person who at the time of taking the deposition was an officer, director or managing agent of a public or private corporation, partnership, or association which is a party adverse to the party offering the deposition in evidence, the deposition may be used for any purpose, whether or not deponent testifies at the trial or hearing.

(2) When the deponent testifies at the trial or hearing, the deposition may be used

a. By any party adverse to the party calling deponent as a witness, for the purpose of impeaching or contradicting the testimony of deponent as a witness, or as substantive evidence, and

b. By the party calling deponent as a witness, as substantive evidence of such facts stated in the deposition as are in conflict with or inconsistent with the testimony of deponent as a witness."

Subsection (d) (3) of the Rule then provides for the only other instances in which the deposition may be used, and "for purpose of corroboration" is not one of them.

Therefore, we hold that under the new rules, as applied to the facts appearing in this case, the trial court did not err in refusing to admit the depositions into evidence.

A review of the record with respect to the other assignments of error argued in plaintiff's brief impels us to conclude that they too are without merit. We hold that plaintiff received a fair trial, free from prejudicial error.

No error.

BROCK, C. J., and CAMPBELL, J., concur.