McAbee v. Love

78 S.E.2d 405 (1953) 238 N.C. 560

McABEE
v.
LOVE et al.

No. 174.

Supreme Court of North Carolina.

November 11, 1953.

Arthur J. Redden, Monroe M. Redden, and Monroe M. Redden, Jr., Hendersonville, for plaintiff appellant.

Harkins, Van Winkle, Walton & Buck, Asheville, for defendant appellee.

WINBORNE, Justice.

Appellants present their assignments of error in three groups, and they will now be so treated.

I. Exception is taken to the exclusion of testimony of a highway patrolman, that he observed tire marks on the shoulder of Dana Road east of Hill Road ten or twelve days or more after the accident.

In this connection, commenting on the subject of foot prints and other tangible clues, Stansbury in his work on North Carolina Evidence, § 85, says: "Tangible traces of various sorts may indicate the presence of a person or the happening of an event of a certain character at a particular place, and evidence of them is therefore admissible if the inference sought to be drawn is a reasonable one * * * and the circumstances of an automobile accident may be inferred from * * * the direction and appearance of tire marks."

And in State v. Ormond, 211 N.C. 437, 191 S.E. 22, it would seem that the admissibility depends upon whether the marks be connected with the automobile.

Also in State v. Palmer, 230 N.C. 205, 52 S.E.2d 908, 913, in opinion by Ervin, J., it is said: "In the nature of things, evidence of shoeprints has no legitimate or logical tendency to identify an accused as the perpetrator of a crime unless the attendant circumstances support this triple inference: (1) That the shoeprints were found at or near the place of the crime; (2) that the shoeprints were made at the time of the crime; and (3) that the shoeprints correspond to shoes worn by the accused at the time of the crime * * *" citing numerous cases. And it is further declared that "Similar criteria apply to evidence of automobile tracks offered to identify the owner of a motor vehicle as the perpetrator of an offense", citing among others State v. Young, 187 N.C. 698, 122 S.E. 667.

Testing the testimony under consideration by these rules, it does not seem that the requirements are met. The witness had testified that on the night of the collision he did not see any tire marks east of Hill Road; that he saw some at a later date; but that he did not know what made them. Hence, prejudicial error is not made to appear.

II. Assignments of error numbers 3 and 5 are based upon exceptions of like numbers taken to portions of the charge defining the word "negligence". As to these, it is pertinent to note here that the reports of this Court are full of instances in which the definition of "negligence", as variously stated by trial judges, has been challenged, and under scrutiny. And while the basic elements constituting the definition are standardized, it does not appear that any particular arrangement of words is required to define what is negligence. It seems sufficient if the essential elements are stated. See State v. Lee, 237 N.C. 263, 74 S.E.2d 654.

Now testing the definitions here questioned, it cannot be said that they are not sufficient to convey to the jury the meaning of the term.

III. Assignment of error number 6 predicated upon exception number 7, is that the trial court erred because it failed to explain to the jury the meaning of the term "greater weight of the evidence". As to this, appellants, in their brief, concede that this Court has held that the failure of the court to define this term is a subordinate feature for which no relief will be given in the absence of a special request therefor—citing particularly the cases of Wilson v. Inter-Ocean Casualty Co., 210 N.C. 585, 188 S.E. 102, and Arnold v. State Bank & Trust Co., 218 N.C. 433, 11 S.E.2d 307. It is also conceded by appellants that no such special request was made. Moreover, no sufficient reason is advanced to merit a change in the recognized rule.

Other assignments of error appear to have been abandoned, or are formal, and need no discussion.

Finally, the record discloses that the case was clearly presented to the jury, and its verdict must stand.

No Error.