McCave v. Crescimanno ( 1979 )

MARTIN (Harry C.), Judge.

Plaintiff first argues the trial judge erred in not allowing plaintiff to pass a coat among the jurors for their examination. Although defendant’s counsel stipulated the bag of clothing in the custody of the officer could be introduced into evidence, when the witness testified he did not see the coat on Mrs. McClave, defendant’s counsel moved to strike it. The court denied the motion but would not allow the coat to be passed to the jury, advising counsel for plaintiff he would have to get “somebody to identify she was wearing it.” Plaintiff’s counsel failed to do so. Without a -showing that Mrs. McClave was wearing or carrying the coat at the time in question, it would not be relevant evidence. A party offering evidence must show its relevancy, materiality and competency. 75 Am. Jur. 2d Trial § 128 (1974). The assignment is overruled.

The trial court did not err in refusing to admit evidence of the number of people in the church. This evidence was irrelevant. The court allowed testimony that there were 40, 50 or 60 pedestrians at the intersection. Later the court struck testimony about pedestrians at the intersection, but it is unclear exactly what testimony was removed from the jury.

Plaintiff tendered testimony concerning the habitual manner Mrs. McCIave followed in getting to church. It indicated her husband usually drove her and parked the car on the north side of Vermont Avenue. Mrs. McCIave used the same route upon leaving the church and returning to the parked car. However, Mr. Mc-CIave testified that on 14 November 1976 he did not drive her to the church. Neither did the witness Louise Rotroff, who testified as to the usual way Mrs. McCIave got to church, attend church on the day of the accident. Plaintiff’s evidence shows Mrs. McCIave did not use her usual method of going to church on the day of the accident. The exclusion of the evidence was not error.

Plaintiff argues the court committed prejudicial error by making several remarks during the trial. We do not agree. The court throughout the trial directed counsel for both plaintiff and defendant to “move on” with the case. Plaintiff’s attorney made no effort to correct any alleged mistakes of the trial court in stating the evidence and contentions. He made no objection at the time and failure to so do constitutes a waiver of any such objections. State v. Hewett, 295 N.C. 640, 247 S.E. 2d 886 (1978); State v. Hartley, 39 N.C. App. 70, 249 S.E. 2d 453 (1978), dis. rev. denied, 296 N.C. 738, 254 S.E. 2d 179 (1979).

While a party can impeach an adverse witness, he cannot do so by arguing with the witness. A fair example of plaintiff’s attempt at impeachment follows:

Then, as you were checking for oncoming traffic and pulling away from the curb, there’s no way you could have seen the lady in front of you.

Plaintiff’s questions were not impeaching in form and the trial court did not err in sustaining defendant’s objections to them.

Plaintiff contends the court erred in refusing to allow questions whether Mrs. McClave appeared to defendant to be alive before the accident. All the evidence shows Mrs. McClave was alive prior to the accident. There was no prejudicial error in not allowing the defendant to testify how she appeared to him.

Plaintiff objects to the refusal of the court to strike defendant’s testimony that “he believes” Mrs. McClave fell backwards into his car. Use of the expressions “I think,” “I believe,” “I reckon” does not render the testimony incompetent. State v. Haney, 263 N.C. 816, 140 S.E. 2d 544 (1965); State v. Ham, 224 N.C. 128, 29 S.E. 2d 449 (1944); 1 Stansbury’s N.C. Evidence (Brandis rev. 1973), § 122; McCormick on Evidence (2d ed. 1972) § 10. There was no error in the ruling of the court.

The court acted within its discretion when it allowed defendant’s attorney to use leading questions in examining defendant. The questions did not involve the merits of the case and we find no abuse of discretion. Howell v. Solomon, 167 N.C. 588, 83 S.E. 609 (1914); 1 Stansbury’s N.C. Evidence (Brandis rev. 1973), § 31.

Plaintiff objects to portions of the charge, particularly the court’s instructions on the duty of a motorist to a pedestrian in an unmarked crosswalk. We find no prejudicial error in the jury instructions.

Plaintiff also assigns error to the court’s rulings on certain evidence with respect to damages. The jury found the defendant was not negligent and did not reach the damage issue; therefore, we refrain from discussing these assignments.

The able trial judge had a difficult case to try, involving the defendant Count Crescimanno, a seventy-five-year-old Italian, testifying through an interpreter. We find no prejudicial error.

No error.

Judges Hedrick and Clark concur.