94 S.E. 424 | N.C. | 1917
1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.
2. Did plaintiff, by his own negligence, contribute to his injury, as alleged in the answer? Answer: No.
3. What damage has plaintiff sustained? Answer: $200.
Judgment thereon, and defendant appealed.
Plaintiff alleged that while he was driving his team on a public road, the defendant, who was in an automobile, approached and passed him in such a negligent and reckless manner, and at such a high rate of speed, that his horses were frightened and ran away, throwing him violently to the ground and severely injuring his back, head, and breaking his nose and several ribs, whereby he was caused great bodily pain and mental suffering, and was subjected to much loss of time and to the payment of medical expenses for his care, etc., to his damage of $2,000. It is also alleged that the driver of the automobile, Julius Shuford, one of the defendants, had the reputation *773
of being a careless and even reckless chauffeur. Plaintiff had a wen on his back, which was bruised by the fall, and became so inflamed as to be very painful and troublesome.
after stating the case: First. The evidence as to the wen on plaintiff's back had already been admitted, without objection, when the defendant objected to a question of plaintiff's counsel in regard to it. If defendant can now raise the question as to its competency, we do not think it should have been excluded. It was sufficiently covered by the allegation as to the injuries in the complaint. Special damages must be pleaded, it is true. Sloan v.Hart,
Second. The testimony of the doctors as to the wen, and their opinion that the injury could have caused it to inflame and become malignant, is not considered in the brief, and therefore is abandoned, but we do not think there is any merit in these assignments of error. The testimony of the experts was not like that in J.M. Pace Mule Co. v. R. R.,
Third. The court would have erred had it nonsuited the plaintiff. There was ample evidence to warrant the verdict, and the court was required to consider it most favorably for the plaintiff, upon such a motion, giving him the benefit of all just and reasonable inferences to be drawn therefrom. Milhiser v. Leatherwood,
Fourth. The testimony as to other horses being frightened by the defendant's automobile, under like circumstances, at the same time, or immediately afterwards, and on the same road, was some corroborative evidence of negligent, reckless, and unlawful driving. It is said in 17 Cyc., under the title of "Similarity in essential conditions," at p. 283: "That a fact existed or event occurred at a particular time cannot be shown by evidence that another fact *775 existed or even occurred at another time, unless the two facts or occurrences are connected in some special way, indicating a relevancy beyond mere similarity in certain particulars. Such relevancy is found where similarity in all essential particulars is shown to exist. Evidence of other facts or occurrences is then admitted, provided the court deems this course a wise exercise of its administrative discretion. The probable fact or occurrence may be (1) found in actual life by observation, or (2) reproduced voluntarily in an experiment. A sufficient ground of admissibility is furnished where physical conditions are shown to have been identical on the two occasions. The observed uniformity of nature raises, under such circumstances, an inference that like causes will produce like results. It is, legally as well as logically, immaterial if dissimilarity in conditions is shown to exist in the presence of some particular which cannot reasonably be expected to have affected the result. Another fact or occurrence, the conditions of which are the same in all essential respects, will be deemed relevant, the burden being upon the party offering the evidence to satisfy the court that such similarity exists. In admitting evidence of such facts or occurrences the court makes no finding, except that sufficient has been shown to him as to the relevancy of the evidence to warrant its submission to the jury. Other occurrences have been deemed relevant where the essential conditions are similar, although the law of uniformity in action underlying the relevancy is not natural, but legal." But we base the relevancy of this testimony upon the ground that the conditions and circumstances were substantially the same (723) and the two occurrences were separated only by a very brief interval of time, the Wilson team being driven just ahead of the plaintiff's on the same road. We hold it to be competent, not because the frightening of Wilson's team is proof of the alleged fact that defendant also frightened the plaintiff's, but merely as a circumstance tending to show that defendant was driving recklessly and in a manner that would frighten animals. Aurora v. Brown, 12 Ill. App.? 122.
Fifth. The instruction of the court as to defendants suddenly, unnecessarily and recklessly sounding the horn of the automobile as he passed the plaintiff's team on the road was unobjectionable. Defendants contend that they were required by the statute to signal Wilson, who was ahead, of their approach. But that question was fairly and fully submitted to the jury, whether they were doing it for the one purpose or the other — that is, to signal Wilson, or suddenly, unnecessarily and recklessly, and in a manner calculated to frighten plaintiff's team. The presiding judge presented this branch of the case in both aspects, giving the plaintiff's contention and the *776 defendants' with equal fullness. The defendant stated that he sounded the gong for the purpose of signaling Wilson, and the judge told the jury that he was justified in so doing, and then gave plaintiff's contention and the instruction we have mentioned. The jury evidently found, under the instructions and the evidence, that the gong was sounded so as to frighten the teams, or suddenly, unnecessarily and recklessly.
The other exceptions are without any merit, or are merely formal.
No error.
Cited: McCord v. Harrison-Wright Co.,
