McNeil v. Williams

191 S.E.2d 916 (1972) 16 N.C. App. 322

Roscoe McNEIL, Administrator of the Estate of William Earl McNeil
v.
Johnnie Edward WILLIAMS.

No. 727SC343.

Court of Appeals of North Carolina.

October 25, 1972.

Farris & Thomas, by Robert A. Farris, Wilson, for plaintiff appellant.

Battle, Winslow, Scott & Wiley, P. A., by Robert R. Spencer, Rocky Mount, for defendant appellee.

PARKER, Judge.

Plaintiff's first assignment of error is stated as follows: "It is submitted that His Honor erred in allowing into evidence opinion testimony concerning intoxication and the effects that a certain percentage of alcohol in the blood would have on Plaintiff's intestate, when the witness had not observed the deceased, nor was there any evidence that the deceased acted in any way but normal. This evidence was included in the charge by the presiding Judge, all to the prejudice of the Plaintiff."

This assignment of error relates to the testimony of Dr. McBay, who was stipulated to be an expert toxicologist. His testimony followed the unchallenged testimony of a laboratory technician from the Department of Pathology of N. C. Memorial Hospital to the effect that a test of decedent's blood following his death disclosed an ethyl alcohol content of .17%. Over objection, Dr. McBay testified that in his opinion a person whose blood showed .17% of alcohol was definitely under the influence of alcohol. We hold that the evidence was competent. Osborne v. Colonial Ice Company, 249 N.C. 387, 106 S.E.2d 573, and cases therein cited.

Thereafter Dr. McBay was permitted to testify, over objection by plaintiff, that a person under the influence of alcohol would lack coordination, would have visual difficulties, particularly in the evening, and would lack judgment. Assuming arguendo, that this testimony was inadmissible, the record reveals that the witness was then allowed, without objection, not only to repeat the testimony in substance but to elaborate on it. Exception to the admission of testimony is waived when testimony of the same import is thereafter admitted without objection. Harvel's Inc. v. Eggleston, 268 N.C. 388, 150 S.E.2d 786.

Plaintiff's first assignment of error is overruled.

By his second assignment of error, plaintiff contends that the trial court expressed an opinion unfavorable to plaintiff in the presence of the jury. We have carefully reviewed the record relating to the three exceptions included in this assignment and conclude that the court did not express an opinion. This assignment of error is overruled.

By his third assignment of error, plaintiff contends the court erred in failing to submit to the jury the issue of last clear chance. In Wade v. Jones Sausage Co., 239 N.C. 524, 525, 80 S.E.2d 150, 151, cited by plaintiff, Ervin, Justice, speaking for the Court said:

"Where an injured pedestrian who has been guilty of contributory negligence invokes the last clear chance or discovered peril doctrine against the driver of a motor vehicle which struck and injured him, he must establish these four elements: (1) That the pedestrian negligently placed himself in a position of peril from which he could not escape by the exercise of reasonable care; (2) that the motorist knew, or by the exercise of reasonable care could have discovered, the pedestrian's perilous position and his incapacity to escape from it before the endangered pedestrian suffered injury at his hands; (3) that the motorist had the time and means to avoid injury to the endangered pedestrian by the exercise of reasonable care after he discovered, or should have discovered, the pedestrian's perilous position and his incapacity to escape from it; and (4) that the motorist negligently failed to use the available time and means to avoid injury to the endangered pedestrian, and for that reason struck and injured him."

In Wade the Court held the doctrine of last clear chance applied, but we think the facts therein are clearly distinguishable from the facts in the case at bar. In Wade, the evidence was sufficient to show: Plaintiff was subject to dizzy spells of a disabling character; while walking on the main-traveled portion of a highway before 4:00 o'clock in the morning, plaintiff became dizzy, lost consciousness, fell, and came to rest athwart the center of the pavement with his feet and legs projecting into the southern traffic lane; while in this helpless position and visible to defendant driver for 225 feet, plaintiff was struck by defendant's vehicle. In the case at bar there was no evidence that decedent placed himself in a position of peril from which he could not escape by the exercise of reasonable care, or that defendant knew, or by the exercise of reasonable care could have discovered, decedent's perilous position and his incapacity to escape from it, or that defendant had the time and means to avoid injury to decedent by the exercise of reasonable care after he discovered, or should have discovered, decedent's perilous position and his incapacity to escape from it.

Plaintiff's witness Lovely testified that immediately before decedent was struck the witness saw decedent on the left shoulder of the road. Defendant testified that he did not see decedent until the moment of impact, and he and his wife testified that defendant's truck was completely on the hard surface at the time of impact. The investigating highway trooper, offered as a witness by plaintiff, testified that defendant told him immediately after the accident that "he was proceeding east and had just pulled out to pass another vehicle proceeding in the same direction" and did not see decedent who was walking on the left side of the hard surface of the highway until it was too late to stop. The trooper further testified that he examined the shoulder of the road adjacent to the point of impact but did not find any tire marks or skid marks on the shoulder. Deceased was wearing dark clothes.

We hold that the trial court properly refused to submit the issue of last clear chance and the assignment of error relating thereto is overruled.

We have carefully considered the other assignments of error brought forward and argued in plaintiff's brief but finding them without merit, they are overruled.

No error.

BRITT and HEDRICK, JJ., concur.