Bryant v. Ballance

13 N.C. App. 181 | N.C. Ct. App. | 1971

BRITT, Judge.

In her first assignment of error, plaintiff contends that the court erred in admitting certain evidence by defendant for that the evidence violated G.S. 8-51, the “Dead Man’s Statute.” Assuming, arguendo, that the challenged testimony did violate the statute, it was rendered admissible when the sister of intestate, as plaintiff’s witness, testified that defendant was driving and that he was not intoxicated. This opened the door for defendant’s version of the matter. Pearce v. Barham, 267 N.C. 707, 149 S.E. 2d 22 (1966) ; Carswell v. Greene, 253 N.C. 266, 116 S.E. 2d 801 (1960). The assignment of error is overruled.

Plaintiff alleges error in the admission of opinion testimony of the witness Barnes as to the intoxication of defendant shortly before the accident. Barnes testified that he went to intestate’s home around 11:45 p.m. with intestate and defendant ; that while there he and defendant, as well as others, drank beer and whiskey; that he got drunk and went to sleep on the front porch of intestate’s sister’s house; that he saw defendant early the next morning (shortly before the accident); that he had occasion to observe defendant during the course of the night and the next morning and, in his opinion, defendant was intoxicated that morning.

We hold that the evidence was admissible. A lay witness is competent to testify whether, in his opinion, a person was drunk or sober on a given occasion on which he observed the person. The conditions under which the witness observed the person, and the opportunity to observe him, go to the weight, not the admissibility of the testimony. State v. Dawson, 228 N.C. 85, 44 S.E. 2d 527 (1947). See also State v. Mills, 268 N.C. 142, 150 S.E. 2d 13 (1966). Plaintiff contends that witness Barnes should have been allowed only to state what he observed defendant do and how defendant acted and that it should have been left to the jury, upon the description provided by the witness, to conclude if defendant was intoxicated. Plaintiff further contends that when the witness admitted that he was intoxicated, this disqualified him as a matter of law to render an opinion as to whether another was intoxicated. We disagree with these contentions; they relate to the weight and not the admissibility of the testimony. State v. Dawson, supra.

Plaintiff contends that there was error in submitting the issue of contributory negligence to the jury. We disagree with this contention. There is ample evidence in the record to support the submission of the issue and indeed it would have been error for the judge not to have done so, since the issue was raised in the pleadings and supported by the evidence. “If different inferences may be drawn from the evidence on the issue of contributory negligence, some favorable to the plaintiff and others to the defendant, it is a case for the jury to determine (Citations).” Wilson v. Camp, 249 N.C. 754, 107 S.E. 2d 743 (1959). See Weatherman v. Weatherman, 270 N.C. 130, 153 S.E. 2d 860 (1967); Boyd v. Wilson, 269 N.C. 728, 153 S.E. 2d 484 (1967).

We have considered plaintiff’s other assignments of error but finding them without merit, they are overruled.

No error.

Judges Brock and Vaughn concur.