Mason Ex Rel. Mason v. Gillikin , 256 N.C. 527 ( 1962 )

124 S.E.2d 537 (1962) 256 N.C. 527

Susan Helene MASON, by her next friend, Mary Lou Mason,
v.
Lundy GILLIKIN, Jr., and James Everett Lawrence.

No. 92.

Supreme Court of North Carolina.

March 21, 1962.

C. R. Wheatly, Jr., and Thomas S. Bennett, Beaufort, for defendant Gillikin, appellant.

Barden, Stith & McCotter, New Bern, for defendant Lawrence, appellant.

Harvey Hamilton, Jr., Moorehead City, for plaintiff, appellee.

BOBBITT, Justice.

In Boykin v. Bennett, 253 N.C. 725, 731, 118 S.E.2d 12, this Court, in opinion by Moore, J., held: "The violation of the racing statute, G.S. § 20-141.3(a) and (b), is negligence per se. Those who participate are on a joint venture and are encouraging and inciting each other. The primary negligence involved is the race itself. All who wilfully participate in speed competition between motor vehicles on a public highway are jointly and concurrently negligent and, if damage to one not involved in the race proximately results from it, all participants are liable, regardless of which of the racing cars actually inflicts the injury * * *."

The evidence, when considered in the light most favorable to plaintiff, was, in our opinion, sufficient to support a finding that Gillikin and Lawrence operated their cars wilfully in speed competition in violation of G.S. § 20-141.3(b) and that their negligence in this respect proximately caused the collision. As to Gillikin, independent of whether he and Lawrence operated their cars wilfully in speed competition, there was sufficient evidence to support a finding that his negligence, in other respects, proximately caused the collision. Hence, the court's action, in overruling defendants' motions for judgment of nonsuit, is approved.

Since a new trial is awarded, we refrain from discussing the evidence presently before us except to the extent necessary to show the reasons for the conclusion reached. McGinnis v. Robinson, 252 N.C. 574, 576, 114 S.E.2d 365; Tucker v. Moorefield, 250 N.C. 340, 342, 108 S.E.2d 637, and cases cited.

On direct examination, Mason testified in detail as to what he saw with reference to the approaching cars of Lawrence and Gillikin, the course of travel and speed of each, etc., until the Gillikin and Mason cars collided. On cross-examination, he was asked this question: "You knew you didn't have time to back in front of him (Lawrence) if he had been, if you had gotten on his side of the road?" Objection by defendant Lawrence was overruled and Mason answered: "I would have if he hadn't been racing." (Our italics) Defendant Lawrence moved to strike the answer. The court overruled said motion and defendant Lawrence excepted. Thereupon, Mason testified he "didn't form any estimate of the speed until it (Lawrence car) got within a hundred yards of (him)." Mason was then asked: "Your side of the road was clear?" Objection by defendant Lawrence was overruled and Mason answered: "If I had known anybody was racing, I sure would have waited until they got by." (Our italics) Defendant Lawrence moved to strike the answer. The court overruled said motion and defendant Lawrence excepted.

Defendant Lawrence contends, and rightly so, that the court erred in denying his motions to strike Mason's said answers wherein Mason testified, in effect, that Lawrence and Gillikin were racing. This testimony, in our opinion, clearly invaded the province of the jury. Whether negligence on the part of Lawrence proximately caused plaintiff's injuries depended upon whether Lawrence and Gillikin operated their cars wilfully in speed competition, that is, wilfully engaged in "racing." This was the critical controverted issue as between plaintiff and Lawrence and a primary controverted issue as between plaintiff and Gillikin.

"A witness must ordinarily confine his testimony to matters within his actual knowledge. He cannot, over objection, be asked questions calling for, or permitted to express, his opinion or conclusion upon facts which are in the province of, and are to be determined by, the jury or by the court trying a case without a jury, provided those facts are capable of being so detailed and described that they can be fully placed before the jury or the court by the witness or by other witnesses having actual knowledge of them." 20 Am.Jur., Evidence § 765.

"Conclusions of a witness as to the issue of negligence and related issues are inadmissible where the material facts can be placed before the jury for their consideration and they are competent to draw a correct inference therefrom." 32 C.J.S. Evidence § 448.

Our decisions are in full accord: Bevan v. Carter, 210 N.C. 291, 186 S.E. 321; Tyndall v. Harvey C. Hines Co., 226 N.C. 620, 39 S.E.2d 828; Wood v. Michigan Millers Mutual Fire Insurance Co., 243 N.C. 158, 160, 90 S.E.2d 310, and cases cited; Jones v. Bailey, 246 N.C. 599, 601, 99 S.E.2d 768, and cases cited.

While it does not appear that defendant Gillikin moved to strike Mason's testimony as to "racing," it would appear that this incompetent evidence was prejudicial alike to Lawrence and to Gillikin.

On cross-examination, counsel for plaintiff, over objections by defendant Gillikin, was permitted to question Gillikin as to the number of accidents or wrecks in which he had been involved. The court overruled each and all of his objections and defendant Gillikin excepted. In this manner, testimony was elicited that Gillikin had been involved in two or three wrecks, including the collision with the Mason car, and specifically that he had been (on some unidentified occasion) in an accident involving a car he was driving and a car one Connie Gillikin was driving. Defendant Gillikin contends, and rightly so, that testimony as to unrelated wrecks or collisions in which he had been involved was incompetent and that his objections should have been sustained.

"Generally, evidence of a driver's previous accidents is inadmissible in a civil action arising out of a motor vehicle accident, since such evidence is immaterial in the determination of the driver's negligence on the occasion in question. Conversely, it is also generally held that evidence that a driver has not been involved in any prior accidents is not competent as to the issue of the driver's negligence in the accident in question." 5A Am.Jur., Automobiles and Highway Traffic § 946; Annotation: "Admissibility, in civil motor vehicle accident case, of evidence that driver was or was not involved in previous accidents," 20 A.L.R. 2d 1210 et seq., and supplemental decisions; Blashfield, Cyclopedia of Automobile Law and Practice, Permanent Edition, Vol. 9C, § 6210; Huddy, Cyclopedia of Automobile Law, Ninth Edition, Vol. 15-16, Sec. 203.

In Heath v. Kirkman, 240 N.C. 303, 307, 82 S.E.2d 104, it is stated: "But evidence of reputation for negligence or of acts of negligence on prior unrelated occasions is not competent to show that the driver was negligent on the occasion of plaintiff's injury. Robbins v. Alexander, 219 N.C. 475, 14 S.E.2d 425." "As a general rule, evidence of other accidents or occurrences is not competent and should not be admitted." Karpf v. Adams, 237 N.C. 106, 74 S.E.2d 325. In the present case, nothing appears to indicate the said evidence was competent under any exception to said general rule.

We are of opinion, and so hold, that the admission of incompetent evidence, as indicated above, was sufficiently prejudicial to entitle both defendants to a new trial. Having reached this conclusion, it is unnecessary to discuss questions raised by defendants' other assignments of error.

New trial.

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