Hall v. Kimber

171 S.E.2d 99 (1969) 6 N.C. App. 669

Bertha Mabel HALL
v.
Charlie Henderson KIMBER.

No. 6918SC27.

Court of Appeals of North Carolina.

December 17, 1969.

Max D. Ballinger, Greensboro, for plaintiff appellant.

Perry C. Henson and Daniel W. Donahue, Greensboro, for defendant appellee.

FRANK M. PARKER, Judge.

Plaintiff assigns as error the trial court's ruling excluding her testimony that in her opinion defendant approached the intersection at a speed of 80 to 90 miles per hour. In this ruling there was no error. At the time the ruling was made, plaintiff had testified that when she first saw defendant's car approaching, it was "four or five times the length of this courtroom away from us." The courtroom was stipulated to be 40-feet long, so plaintiff in effect testified that she had observed defendant's car while it traveled toward her over a distance of 160 to 200 feet. Had it actually been moving as fast as plaintiff attempted to testify, she would have had only approximately one and one-half seconds during which to observe it, hardly a sufficient interval in which to form an opinion as to its speed of any real probative value. Later in the trial she attempted to testify that when she first saw defendant's car it was three or four hundred feet away, which testimony was excluded on defendant's objection. Even if this later testimony had been admitted and accepted as true, plaintiff would have had only approximately three seconds within which to observe defendant's car. Under either version of plaintiff's testimony it is questionable whether she could be considered as having observed defendant's car for a sufficient time to afford her a reasonable opportunity to form an intelligent opinion as to its speed. Quite apart from that question, however, her testimony as to speed was properly excluded for the reason that the undisputed evidence belies plaintiff's estimate and makes it without probative value. Mayberry v. Allred, 263 N.C. 780, 140 S.E.2d 406. Defendant's automobile left only 96 feet of skid marks leading to the point of impact. These were approximately straight and in defendant's proper lane of travel. Defendant's car stopped practically at the point of impact and headed in its proper direction. Its occupants suffered no injuries. The Kleiman vehicle was spun around, but it, too, came to rest close to the point of impact. Defendant's car could not have been stopped within the distance and in the manner as established by this physical evidence if it had been moving as fast as plaintiff's estimate.

Since her direct testimony as to her opinion concerning defendant's speed was properly excluded, it follows that there was also no error in the exclusion of evidence concerning plaintiff's prior oral and written statements about defendant's speed. Such evidence as to prior consistent statements of the plaintiff would have been admissible not as substantive evidence but only for purposes of corroborating her testimony from the witness stand. Stansbury, N.C. Evidence 2d, § 52, p. 105. Her testimony from the witness stand as to speed having been excluded, nothing remained to which the proffered corroborative evidence could properly relate.

Plaintiff alleged in her complaint that the collision and her resulting injuries were proximately caused by defendant's negligence in a number of respects. She produced no competent evidence to support her allegations that defendant was driving at an excessive speed, that he failed to decrease speed when approaching an intersection, or that he failed to keep a proper lookout or to keep his vehicle under reasonable control. The uncontradicted physical evidence disclosing that defendant's car left skid marks only 96-feet long, that these were in a straight line and in defendant's proper lane of travel, and that his car came to a stop at the point of impact, certainly cannot support an inference either that his speed was excessive or that he failed to keep his car under reasonable control. Clayton v. Rimmer, 262 N.C. 302, 136 S.E.2d 562. Indeed, this physical evidence would more nearly support the contrary inference. Plaintiff produced no competent evidence whatever relating to the manner in which defendant was driving, certainly none which could legitimately support an inference of negligence on his part. Therefore, nonsuit was proper insofar as all of plaintiff's allegations of negligence on the part of defendant which relate to the manner in which he was driving are concerned.

There remains only plaintiff's allegation that defendant was negligent in failing to yield the right-of-way to a vehicle already within the intersection, a violation of G.S. § 20-155(b). In this connection plaintiff's evidence was completely inconsistent with the allegations in her complaint. She alleged that the median on Highway 29-70 was approximately 20-feet wide and that Mrs. Kleiman, in whose car plaintiff was riding, drove on Highway 29-70 to its intersection with Osborne Road where she proceeded to make a left turn into Osborne Road. Had these been the facts, the provisions of G.S. § 20-154 and North Carolina court decisions which relate to the respective obligations imposed upon the driver of a vehicle turning left at an intersection and the driver of a vehicle approaching from the opposite direction would have applied. Plaintiff's evidence, however, was all to the effect that the median on Highway 29-70 was 31-feet wide, thus making the crossing of Osborne Road over the eastbound lanes of Highway 29-70 a separate intersection. G.S. § 20-38(12). In addition, all of plaintiff's evidence was to the effect that the Kleiman vehicle remained stopped in the crossover for several minutes before entering the intersection, a completely different factual situation from that alleged in her complaint. "The rule is well established that judgment of nonsuit is proper when there is a fatal variance between a plaintiff's allegata and probata. Proof without allegation is no better than allegation without proof. A plaintiff must make out his case secumdum allegata. He cannot recover except on the case made by his pleading." Hall v. Poteat, 257 N.C. 458, 125 S.E.2d 924. If the variance could not have misled the defendant to his prejudice, it will not be deemed material. G.S. § 1-168; McCrillis v. A & W Enterprises, Inc., 270 N.C. 637, 155 S.E.2d 281. Whether it will be deemed material and therefore fatal must be determined in the light of the facts of each case. Spaugh v. City of Winston-Salem, 249 N.C. 194, 105 S.E.2d 610. In the present case the plaintiff's allegations would have made applicable one group of statutes and decisions; her proof would make others here pertinent. The respective rights and obligations of the drivers of the two vehicles involved in the collision which gave rise to this lawsuit would be materially different, depending upon whether the facts were as plaintiff alleged or as she proved. In our judgment the variance between plaintiff's allegations and proof insofar as they related to her contention that defendant was negligent in failing to yield the right-of-way was substantial and material in this case.

Confronted by a failure of proof of any negligence of defendant in other respects and by the material variance between plaintiff's allegations and proof insofar as her allegation of negligence in failing to yield the right-of-way is concerned, the trial court properly entered judgment of nonsuit.

Affirmed.

MALLARD, C. J., and BRITT, J., concur.