Bryant v. Russell

Mar 2, 1966
113
Reporters:
, ,
Before:
Cukiam
PER Cukiam.

In Ingram v. McCuiston, 261 N.C. 392, 134 S.E. 2d 706, this Court said: “To be competent, a hypothetical question may include only facts which are already in evidence or those which the jury might logically infer therefrom.” See also: Jackson v. Stancil, 253 N.C. 291, 303, 116 ‍​​‌‌‌​​​‌​‌​​‌‌​​​‌‌‌‌‌‌​​​​​‌​​‌​​​‌‌‌​‌‌​‌​‌‌​‌‌​​​​‌​‌‌​​‌‌‌‌‌​‌‌​‌​‌‌‌​‌‌‌​​​‌‌​‌‌​​​​​‌‌​​​‍S.E. 2d 817; Stansbury, North Carolina Evidence, § 137. The hypothetical question propounded to Dr. Bag-gett included facts as to which there was no evidence then in the record. Consequently, the objection was properly sustained. It was also proper to deny the motion that his answer, put into the record in the absence of the jury at the time the question was originally asked, be read at the close of the plaintiff’s evidence. At that time Dr. Baggett had left the ‍​​‌‌‌​​​‌​‌​​‌‌​​​‌‌‌‌‌‌​​​​​‌​​‌​​​‌‌‌​‌‌​‌​‌‌​‌‌​​​​‌​‌‌​​‌‌‌‌‌​‌‌​‌​‌‌‌​‌‌‌​​​‌‌​‌‌​​​​​‌‌​​​‍courtroom and was not available for cross-examination. It is not necessary to determine whether the evidence offered by the plaintiff in the meantime would have made such a question proper had Dr. Baggett been recalled as a witness.

There was no error in sustaining the objection to the second question propounded to Dr. Baggett. It did not call for his statement of the plaintiff’s condition at the time of his examination or as to what could have been the cause thereof. ‍​​‌‌‌​​​‌​‌​​‌‌​​​‌‌‌‌‌‌​​​​​‌​​‌​​​‌‌‌​‌‌​‌​‌‌​‌‌​​​​‌​‌‌​​‌‌‌‌‌​‌‌​‌​‌‌‌​‌‌‌​​​‌‌​‌‌​​​​​‌‌​​​‍It called for his opinion as to the injuries she sustained in the collision which occurred three months prior t‘o his examination of the plaintiff, which collision the witness did not observe. Stansbury, North Carolina Evidence, § 136.

The motion to set aside the verdict on the ground that the jury’s answer to the issue of damages was contrary to the greater weight of the evidence was addressed to the discretion of the trial judge. Nance v. Long, 250 N.C. 96, 107 S.E. 2d 926; Lamm ‍​​‌‌‌​​​‌​‌​​‌‌​​​‌‌‌‌‌‌​​​​​‌​​‌​​​‌‌‌​‌‌​‌​‌‌​‌‌​​​​‌​‌‌​​‌‌‌‌‌​‌‌​‌​‌‌‌​‌‌‌​​​‌‌​‌‌​​​​​‌‌​​​‍v. Lorbacher, 235 N.C. 728, 71 S.E. 2d 49; Strong, N. C. Index, Appeal and Error, § 46. His decision is not reviewable except upon a showing of abuse of discretion, which does not appear upon this record.

The record does not show that the plaintiff called to the attention of the trial judge any error in his summary of the contentions of the parties set forth in his charge to the jury. Consequently, this assignment of error can not be sustained. Rudd v. Stewart, 255 ‍​​‌‌‌​​​‌​‌​​‌‌​​​‌‌‌‌‌‌​​​​​‌​​‌​​​‌‌‌​‌‌​‌​‌‌​‌‌​​​​‌​‌‌​​‌‌‌‌‌​‌‌​‌​‌‌‌​‌‌‌​​​‌‌​‌‌​​​​​‌‌​​​‍N.C. 90, 120 S.E. 2d 601; Strong, N. C. Index, Trial, § 35.

No other ground being advanced for the motion for a new trial, it was, presumably, based upon the above assignments of error and was, therefore, properly overruled.

No error.

Moore, J., not sitting.