Brewer v. GarnerBrewer v. Garner
The plaintiff’s appeal presents a single question of law: Did the court commit prejudiciаl error on the issue of contributory negligence? The defendants, by vigorous cross-examinatiоn, sought to force from the plaintiff the admissions that he'was driving under the influence of liquor and, at the time of the accident, was attempting to light a cigarette.
In support of the charge the plaintiff was driving under the influence of liquor, the defendants offered the evidence of Mr. Bolick of the State Highway Patrol, who arrived on the scene thirty minutes after the collision but before the plaintiff, who was unconscious, had been removed from the Oldsmobile. The patrolman testified he detected the odor of some type of whisky in plaintiff’s automobile. Plaintiff’s cоunsel sought on cross-examination to have Mr. Bolick admit he had made an inconsistent statеment and produced what purported to be a photostatic copy of a paper writing dated January 14, 1963, which the witness admitted, “This photostat is an exact copy of what I signed.” The copy contained this statement: “I could not say whether any of the parties had been drinking.” The court, on defendants’ objection, excluded the question and answer. The exclusion is the subject of Assignment of Error No. 1, based on Exception No. 15.
The plaintiff offered the еvidence of Mr. Hundley who was present when Mr. Bolick examined plaintiff’s automobile. He testified: “I did not see any evidence of alcohol in the car.” The surgeon who treated plаintiff’s injuries one hour after he received them, testified: “I did not detect any evidence of аlcohol on plaintiff’s breath when I sewed him up.”
With respect to the defendants’ allegatiоns that plaintiff was intoxicated, the court charged:
“And then, finally, the defendants have alleged that the plaintiff was driving his motor vehicle under the influence of intoxicating beverages. That is сontained in G.S. 20-138, and it provides that, ‘It shall be unlawful and punishable as provided in Section 20-179 when any person, whether licensed or not, who is an habitual user of narcotic drugs, or any person whо is under the influence of intoxicating liquor or narcotic drugs, to drive any vehicle upon the highwаys within this State.’ ”
Assuming, without deciding, the odor of some type of whisky in plaintiff’s vehicle some thirty minutes after thе wreck would be sufficient to permit an inference the plaintiff was driving under the influence, then certainly it would be proper by way of impeachment for the plaintiff’s counsel on crоss-examination to show that on January 14, 1963, twenty-eight days after the accident, the witness had signed а statement saying, “I could not say whether any of the parties had been drinking.”
“The right to have an оpportunity for a fair and full cross-examination of a witness upon every phase of his еxamination-in-chief, is an absolute right and not a mere privilege.”
The charge underscored the importance of plaintiff’s intoxication on the issue of contributory negligence. There was no evidence of intoxication except the odor of some type of whisky in and around the plaintiff’s automobile thirty minutes after the collision. That odor, Mr. Bolick alone detectеd. The instruction on intoxication based on such equivocal evidence magnified the effect of the court’s error in excluding Mr. Bolick’s signed statement, “I could not say whether any of the parties had been drinking.”
By cross-examination, the defendants’ counsel sought unsuccessfully to havе the plaintiff admit that at the time of the collision he was in the act of lighting a cigarette. This the plaintiff categorically denied. However, Mrs. Garner, one of the defendants, over оbjection, was permitted to testify that two days after the accident and after the “demolished vehicle” had been removed to Asheboro, (ten miles from the scene of the accident) she found a slightly burned cigarette in the floorboard of the vehicle. By what means the automobile was taken from the scene to Asheboro, who took it, and how many people had been around it in the meantime, were left to conjecture. The evidence that a slightly burned cigarette was found on the floor of the Oldsmobile, so removed in time and plaсe, was too remote to have probative value and should have been excluded.
For the reasons assigned, there should be a new trial on the issues of negligence, contributory negligence, and if the plaintiff prevails on both, then on the issue of damages. To that end the judgment dismissing the action is
Reversed.