Yelton ex rel. York v. Dobbins

Mallabd, C.J.

The record is not clear as to what disposition was made of the case as to the defendant Floyd E. Parker. He was not referred to in the issues submitted or in the judgment entered. He did not appeal.

Appeal of Marjorie Conner Dobbins and Norris Gregory Dobbins, by and through his guardian ad litem, Marjorie Conner Dobbins

Gregory and Marjorie Conner Dobbins assign as error the failure of the trial court to allow their motion for judgment of non-suit. It was stipulated “that the car driven by Gregory Dobbins, and owned by Mrs. Marjorie Dobbins was a ‘family purpose car’ ,and was being used as such at the time of the accident.” It was for the jury to say whether Gregory failed to keep a reasonable lookout, failed to keep the vehicle under proper control, or whether his speed ,was in excess of the maximum speed permissible under the statute, and if so, whether such was a proximate cause of the collision and injuries to plaintiff. We are of the opinion and so hold that there was ample evidence of negligence on the part of Gregory to require submission of the issue of his negligence to the jury.

Defendants Dobbins assign as error the failure of the judge to instruct the jury that if they should answer the issue numbered 2 “yes” that it would be their duty to answer issues numbered 5 and '6 “yes.” Issue number 2 required the jury to find that the plaintiff, Robert D. Yelton, urns injured by the negligence of the defendant Parker. Issue number 5 required the jury to find that the defendant Norris Gregory Dobbins was injured by the negligence of the defendant Parker. Issue number 6 required the jury to find that the automobile of the defendant Mrs. Marjorie Conner Dobbins was damaged by the negligence of defendant Parker. A finding by the jury that the plaintiff was injured by the negligence of Parker does not demand a finding that Gregory was injured or that the Dobbins automobile was damaged by the negligence of Parker. The judge did not commit' error in failing to so instruct the jury.

The defendants Dobbins also contend that the answer to issue number 2 is inconsistent with the answers to issues numbered 5 and 6 and that the judge committed error in accepting the verdict, in failing to set the verdict aside, and in the entry of judgment on the verdict. In view of what has been said above, these contentions are without merit.

The defendants Dobbins and Parker were original defendants. No question has been raised or decided as to the right of Gregory and Marjorie Conner Dobbins to maintain such a cross action in this case under the rules of civil procedure applicable at this time. Jarrett v. Brogdon, 256 N.C. 693, 124 S.E. 2d 850 (1962).

Appeal of Lucille Croom Parker

Defendant Parker contends that the trial court committed error in permitting the defendants Dobbins to cross-examine the witnesses offered by the plaintiff before they were cross-examined by the defendant Parker. The court, in the exercise of sound legal discretion, has the right to regulate and control the conduct of a trial. Greer v. Whittington, 251 N.C. 630, 111 S.E. 2d 912 (1960). “And it is the duty of the court to control the examination and cross-examination of witnesses.” 7 Strong, N.C. Index 2d, Trial, § 9. When there is more than one party entitled to cross-examine, it is the duty of the court to determine in what order the cross-examination is to be conducted. We hold that it was not error for the trial judge to permit the defendants Dobbins to cross-examine the witnesses offered by the plaintiff before they were cross-examined by the defendant Parker.

Parker contends that it was error for the court to permit the defendant Norris Gregory Dobbins to ask the plaintiff, Robert D. Yelton, leading questions on cross-examination. This contention is without merit. “Whether the counsel shall be permitted to ask a leading question is within the discretion of the trial judge, and the exercise of such discretion will not be reviewed on appeal.” 7 Strong, N.C. Index 2d; Witnesses, § 7.

Defendant Parker’s assignments of error 2, 5, and 7 relate to the judge asking questions of different witnesses. In 7 Strong, N.C. Index 2d, Trial, § 10, there appears the following: “It is proper for the court to ask a witness questions for the purpose of clarifying the witness’ testimony, but in so doing the court should be careful not to express an opinion on the facts or impeach or discredit the witness.” It is the better practice for the trial judge to refrain from asking questions of the witnesses. However, after carefully considering the circumstances and the questions and statement complained of, we are of the opinion that such did not constitute an expression of opinion on the facts or impeach or discredit the witness and that such did not prejudice the defendant Parker.

Defendants’ assignment of error 4, based on defendant Parker’s exception 9, asserts that the court permitted a police officer to testify as to the contents of a report he made. After the police officer was handed a copy of the report of the accident, upon redirect examination by counsel for the plaintiff, the following occurred:

Q Who do you show there as being the driver in the number one there?

MR. NAT HAMRICK: Objection, sir. Your Honor, this report is not competent under any circumstances.

THE COURT: Well, he can use it if he has any knowledge — he can use it to refresh his recollection and for no other person (sic).

Q All right, sir, do you have any recollection then from your investigation, who was the driver of what’s listed here in this report as driver number one?

MR. NAT HAMRICK: Now, your Honor, I object to that. He is talking about the course of his investigation. The man has been examined and cross examined about what he knows.

THE COURT: Objection overruled. I think its’s competent.

EXCEPTION.

Q Go ahead.

A Lucille Parker.”

The witness did not answer the first question propounded. The answer came after the second question, and we assume that it was in response to the second question. The lawyers in their conduct of the trial of this case were very vigorous and eager to protect the interests of their clients, and counsel in their zeal frequently appeared to be arguing with each other. Perhaps this resulted in the question not being clear. We do not think that the answer had the effect of the police officer testifying “as to the contents of the report he made,” nor did allowing the witness to answer the question result in prejudicial error so as to require a new trial.

There was ample evidence for the jury to find that Parker was negligent in that she drove the truck out of West Street into U. S. Highway #74 Bypass immediately in front of the Dobbins vehicle, failed to yield the right of way after failing to stop for a stop sign facing her, failed to keep a proper lookout, and failed to keep the vehicle she was operating under control. The trial judge did not commit error in overruling the motion of Parker for a non-suit.

Parker also assigns as error a portion of the charge, but when the entire charge of the court to the jury is considered contextually, no error prejudicial to defendant Parker is made to appear.

After careful consideration of all assignments of error of all the defendants, in the trial we find

No error.

MoRRis and Hedrick, JJ., concur.