Harris v. Draper , 233 N.C. 221 ( 1951 )

63 S.E.2d 209 (1951) 233 N.C. 221

HARRIS
v.
DRAPER.

No. 739.

Supreme Court of North Carolina.

February 2, 1951.

Victor S. Bryant, Robert I. Lipton and Victor S. Bryant, Jr., all of Durham, for plaintiff-appellant.

Fuller, Reade, Umstead & Fuller, Durham, for defendant-appellee.

STACY, Chief Justice.

The question for decision is whether the trial and judgment can be sustained in the face of the exceptions shown in the record and debated on brief. We are constrained to answer in the negative.

First. Exception to Exclusion of Evidence. The witness, Ervin Green, if allowed to testify, would have said the defendant's car was traveling about 60 miles an hour when it struck the car he was driving. This proffered testimony was competent, its weight and credibility, of course, being for the jury. Hicks v. Love, 201 N. C. 773, 161 S.E. 394; Jones v. Bagwell, 207 N.C. 378, 177 S.E. 170; Tyndall v. Harvey C. Hines Co., 226 N.C. 620, 39 S.E.2d 828; Brafford v. Cook, 232 N.C. 699, 62 S.E.2d 327.

True it is, the jury answered the issue of negligence in favor of the plaintiff, and this ordinarily might have cured the error. In the instant case, however, the proffered testimony was also competent on the issue of plaintiff's alleged contributory negligence or the sole negligence of the defendant. The vital question, debated on the hearing, was whether Green or the defendant entered the intersection against the red light.

Second. The Misquotation of Evidence in the Court's Charge. After the court had stated to the jury for the third time that, according to the defendant's testimony, the driver of plaintiff's intestate's car told the defendant immediately after the collision, "he did not see the light was red * * * or the red light until he was right under it", counsel for plaintiff arose and called the court's attention to what he conceived an inadvertent misquotation of the evidence. Instead of referring to the record which would have borne out plaintiff's contention, the court replied: "it is my recollection that he said Green told him that when he ran under it he saw that the light was red". And counsel for defendant also interjected: "That was my recollection, too". Thus, instead of correcting the inadvertence, it was emphasized and fortified by the recollection of defendant's counsel, which rendered the plaintiff's last state worse than his first.

The fact the jury was immediately told they would not take the court's recollection, or that of counsel, but would rely on their own memory of what the witness had said was hardly sufficient to meet the objection interposed by counsel. The prejudicial emphasis and effect had already been given and were allowed to stand without any change, modification, or correction.

It is the rule with us that when counsel deem the recitals of the court incorrect as to the facts of the case or the contentions arising thereon, the matter must be called to the court's attention, either at the time or perhaps more appropriately at the close or just before the close of the charge, so as to afford an opportunity of correction; and where this is done, as here, and no correction is made, the party aggrieved must be given a hearing on appeal, if properly presented by exception and assignment of error. State v. McNair, 226 N.C. 462, 38 S.E.2d 514; State v. Sinodis, 189 N.C. 565, 127 S.E. 601; State v. Barnhill, 186 N.C. 446, 119 S.E. 894; 85 A.L.R. 541.

Then, too, it must be remembered the matter here complained of was deadly on the issue of contributory negligence, for an admission from Green that he entered the intersection against the red light was fatal to plaintiff's cause under the theory of the trial.

Moreover, it may be doubted whether the court was justified in assuming Ervin Green to be the agent of plaintiff's intestate and acting in the scope of such agency on the occasion in question. Plaintiff contends that her intestate was a guest in the car at the time and that he went along only to drive the car back to Durham after Green had reached his home in Creedmoor. The evidence appears to be susceptible of either interpretation, which would seem to require or indicate its submission to the jury on the point. Annotation 80 A.L.R. 291.

A new trial is made necessary by the exceptions. It is so ordered.

New trial.