Wright v. Holt

197 S.E.2d 811 (1973) 18 N.C. App. 661

Shirley Holt WRIGHT
v.
Lorine Wilson HOLT.

No. 7319SC478.

Court of Appeals of North Carolina.

July 11, 1973. Certiorari Denied August 31, 1973.

Ottway Burton, Asheboro, for plaintiff appellant.

Smith & Casper, by Archie L. Smith, Asheboro, for defendant appellee.

Certiorari Denied by Supreme Court August 31, 1973.

BALEY, Judge.

The plaintiff assigns as error the failure of the court below to admit into evidence the record of another case brought by the husband of the plaintiff against the defendant for personal injuries and property damage arising out of the same accident upon which the present case is based. She contends that the issue of negligence had already been determined in the prior case and that only the issue of damages should have been submitted in her case.

Plaintiff was not a party to the prior action. She is not bound by the judgment entered in that action. Since estoppel by judgment must be mutual, plaintiff cannot assert the judgment in the prior action against the defendant as res judicata in the present case. Kayler v. Gallimore, 269 N.C. 405, 152 S.E.2d 518; Queen City Coach Co. v. Burrell, 241 N.C. 432, 85 S.E.2d 688.

In Queen City Coach Co. v. Burrell, supra at 436, 85 S.E.2d at 692, the court dealt with the precise point raised by plaintiff: "The great weight of authority seems to be that a judgment for the plaintiff in an action growing out of an accident is not res judicata, or conclusive as to issues of negligence or contributory negligence, in a subsequent action growing out of the same accident by a different plaintiff against the same defendant."

Plaintiff assigns as error the refusal of the court to set aside the verdict because one of the jurors disclosed after the verdict that she had overheard the defendant made a statement in the rest room that the windshield of plaintiff's car was not broken. The record shows that the court made a careful investigation, and after a full revelation of all the circumstances surrounding the making of the statement and its relevance upon the issue of negligence which was decided adversely to plaintiff, concluded that it had no prejudicial effect upon the verdict. This was a matter addressed to the discretion of the trial court and will not be disturbed on appeal in the absence of a showing of manifest abuse of discretion. O'Berry v. Perry, 266 N.C. 77, 145 S.E.2d 321; Stone v. Baking Co., 257 N.C. 103, 125 S.E.2d 363; Brown v. Products Co., 5 N.C.App. 418, 168 S.E.2d 452.

The plaintiff's assignments of error which relate to the charge of the court cannot be sustained. With particular reference to G.S. § 20-158 which provides that vehicles must stop and yield right-of-way at through highways the court stated:

"The test is whether or not a reasonable and careful and prudent person would have stopped and yielded the right-of-way under the circumstances as they existed."

The jury was clearly told that defendant's duty was reasonable care under the circumstances. There are no reasonable grounds to believe that it was misled in any respect. Cowan v. Transfer Co. and Carr v. Transfer Co., 262 N.C. 550, 138 S.E.2d 228; Vincent v. Woody, 238 N.C. 118, 76 S.E.2d 356.

The weight and credibility of the testimony was for the jury to decide. Plaintiff must now abide the result.

No error.

CAMPBELL and HEDRICK, JJ., concur.