Walker v. Continental Baking Co.

138 S.E.2d 33, 262 N.C. 534, 1964 N.C. LEXIS 676

• Court: Supreme Court of North Carolina
• Decided: September 30, 1964
• Docket: 167
• Status: Published

Opinion

PeR Cueiam.

Walker alleged and testified in support of his allegations: The collision occurred about 1:00 p.m. He was traveling north on Highway No. 17, and in the eastern, his proper lane. He saw Continental’s truck approaching. It was also in the eastern, the wrong lane. He blew his horn to alert Continental’s driver. To avoid a collision, he, Walker, pulled to his right and on to the shoulder. Continental’s driver was slumped over with his bead on the steering wheel. Seeing he could not avoid a collision by going further to the right, he turned to his left, but was unable to avoid a collision, which occurred in his lane of travel.

Walker’s description of the manner in'which the collision occurred was corroborated by a witness who testified he was traveling north and immediately behind Walker.

Lewis testified. He told how the collision occurred. His version contradicted the statements made by Walker and his witness. He said he was in his proper lane and that the collision occurred because Walker came into Lewis’ lane. Lewis, to support his version, put on two witnesses who testified they saw the collision. Their testimony with respect to the manner in which the collision occurred supported Lewis’ version.

Walker’s character, and the character of his witness, were attacked on cross examination by questions directed to their commission of criminal offenses.

Walker and Bass assign as error the court’s refusal to permit them to corroborate Walker’s testimony by the testimony of the Highway Patrolman who investigated the collision. He arrived at the scene fifteen or twenty minutes after the collision occurred. His testimony, not per mitted to go to the jury, was that Walker, at the scene of the collision, told him how the collision occurred and related the manner in which it occurred. The statements he attributed to Walker as to the cause of the collision were the same as given by Walker as a witness.

The patrolman’s testimony was not offered as substantive evidence, but for the sole purpose of corroborating Walker. It was competent for that purpose. Stansbury’s North Carolina Evidence (2d Ed.), sec. 51, and cases assembled in note 63. We are of the opinion that the exclusion of the evidence was prejudicial. State v. Brown, 249 N.C. 271, 106 S.E. 2d 232; Jackson v. Sanitarium, 234 N.C. 222, 67 S.E. 2d 57; Roberts v. Roberts, 82 N.C. 29.

New trial.