Jernigan v. Jernigan

78 S.E.2d 179, 238 N.C. 444, 1953 N.C. LEXIS 552

• Court: Supreme Court of North Carolina
• Decided: October 21, 1953
• Docket: 237
• Status: Published

Opinion

Ervin, J.

Tbe defendant makes these assertions by bis assignments of error:

1. The court erred in refusing to dismiss tbe action upon a compulsory nonsuit at tbe close of all tbe evidence.

2. Tbe court erred in permitting tbe plaintiff to testify that subsequent to tbe accident tbe defendant admitted be could have avoided tbe collision with tbe Capps ear in several ways.

Counsel for tbe defendant lays great stress on bis contention that tbe action ought to have been involuntarily nonsuited in tbe Superior Court. "We are compelled to bold, however, that tbis question is foreclosed against tbe defendant by tbe decision on tbe former appeal adjudging tbe plaintiff’s evidence sufficient to carry the case to tbe jury and to support a verdict in her favor. Tbis is true for tbe very simple reason that tbe evidence adduced by tbe plaintiff at the second trial is substantially tbe same as that presented by her at tbe first trial and considered by us on tbe former appeal. Mintz v. R. R., 236 N.C. 109, 72 S.E. 2d 38; Maddox v. Brown, 233 N.C. 519, 64 S.E. 2d 864; Randle v. Grady, 228 N.C. 159, 45 S.E. 2d 35; Pinnix v. Griffin, 221 N.C. 348, 20 S.E. 2d 366; 141 A.L.R. 1164; Wall v. Asheville, 220 N.C. 38, 16 S.E. 2d 397; Simpson v. Oil Co., 219 N.C. 595, 14 S.E. 2d 638; McGraw v. R. R., 209 N.C. 432, 184 S.E. 31; Dixson v. Realty Co., 209 N.C. 354, 183 S.E. 382; Groome v. Statesville, 208 N.C. 815, 182 S.E. 657; Masten v. Texas Co., 204 N.C. 569, 169 S.E. 158; Madrin v. R. R., 203 N.C. 245, 165 S.E. 711; Newbern v. Telegraph Co., 196 N.C. 14, 144 S.E. 375; McCall v. Institute, 189 N.C. 775, 128 S.E. 349; Soles v. R. R., 188 N.C. 825, 125 S.E. 24; Ciarle v. Sweaney, 176 N.C. 529, 97 S.E. 474. In ruling on tbe motion to non-suit, tbe trial judge properly disregarded tbe evidence of tbe defendant contradictory to that supporting tbe plaintiff’s contention. Hansley v. Tilton, 234 N.C. 3, 65 S.E. 2d 300.

Tbe defendant objects to tbe receipt of bis extrajudicial declaration tbat be could bave avoided striking tbe Capps car in several ways on the theory tbat such declaration expresses a mere opinion or conclusion, and for tbat reason falls within tbe condemnation of tbe general rule excluding opinions or conclusions. Insurance Co., v. R. R., 195 N.C. 693, 143 S.E. 516. This position is untenable. Tbe declaration can be reasonably interpreted to be a short-hand statement of fact based on tbe personal knowledge of the defendant. This being so, the trial judge rightly received tbe declaration in evidence as an admission against tbe interest of tbe defendant on tbe issue of liability. Hobbs v. Coach Co., 225 N.C. 323, 34 S.E. 2d 211; Brown v. Wood, 201 N.C. 309, 160 S.E. 281; Stansbury: North Carolina Evidence, section 167; Micbie: The Law of Automobiles in North Carolina, section 253; 31 C.J.S., Evidence, section 272.

Since no error is shown, tbe judgment entered in tbe Superior Court will be sustained.

No error.