9 N.C. App. 392 | N.C. Ct. App. | 1970
Plaintiff’s first four assignments of error are to the admission or exclusion of evidence. He first contends that the court committed prejudicial error in striking, on motion of defendant, the following testimony:
“Q. Now, do you have any other scars on your face left from this thing?
A. The one the horse did. The one that comes down this way and goes across the eyebrow to right here (indicating) .”
At that point, there had been no evidence introduced from any witness that plaintiff had been kicked by a horse. Indeed, the plaintiff had testified “I do not remember seeing the horse till this day.” He remembered nothing of what occurred except that he went to defendant’s house to inquire where the horse was. He further testified that he did not regain consciousness for some nine to twelve days. This evidence was properly stricken. Similarly, he contends that testimony of the doctor who treated him should not have been stricken. Dr. de la Torre was asked to .refer to his notes and “tell us when you first saw him and what you found at that time.” The physician answered: “On July 6, ’66, he was admitted to Forsyth Memorial Hospital by Doctor Starling, a general surgeon, who called me about him, and I saw him that day. He had been kicked by a horse, on that day.” On motion of defendant, the last statement was stricken and the jury instructed not to consider it. Plaintiff contends the physician should be allowed to testify “upon his personal knowledge based on an examination of the injured party ... as
The young man who assisted the plaintiff by holding the “lead shank” and the mare’s left forefoot, at the direction of plaintiff, testified in detail with respect to the procedure used by plaintiff and what occurred from the time they went to the defendant’s pasture until the plaintiff was injured. He testified that he followed the plaintiff’s instructions; that he was holding the lead shank in one hand, and the mare’s foot in the other; that he was holding the horse’s foot approximately three feet off the ground; that as plaintiff began his examination, the horse seemed slightly nervous, so he stopped for a few minutes and rubbed the horse’s hind quarters, and the witness put the horse’s foot down; that when he was ready they went through the same process, the witness getting down and holding the horse’s foot and the lead shank; that he held the leg up as best he could; that plaintiff had entered the mare with his arm when she lunged forward, forcing the witness back, and he could see her kicking the plaintiff in the head; that she had made no movement at all before she made the sudden lunge forward. The witness further testified that he did not recall a twitch in the trunk of plaintiff’s car; that he had used a twitch before in holding a horse and knew how, but that plaintiff did not tell him to use a twitch; that he did not use any hobbles; that plaintiff did not tell him to use hobbles. The witness was then asked, “Were there any precautions taken when Doctor Dixon walked around behind this horse?” Over plaintiff’s objection witness was allowed to answer the question, his answer being “None other, Sir, than just being slow and easy.” Plaintiff contends that the question called for a conclusion from a non-expert. We fail to see prejudice to plaintiff. The witness had testified to everything that was done and had then testified that neither hobbles nor twitch was used. Subsequent expert witness testifying for plaintiff testified that the method used was the one commonly used in Forsyth County and provided as much restraint as other methods, that a horse could not kick with both
Mrs. Sara Morgan testified that she had been training horses and teaching horseback riding for some 18 years and owned her business known as “Cedar Hollow Farm.” She had sold the mare to defendant for his young daughter. She testified that during her years of experience she had quite often observed a horse being tested to determine whether it was in foal. Over plaintiff’s objection she was allowed to testify with respect to what she had observed “as to technique or approach to the horse.” Plaintiff’s objection seems to be based on his contention that the witness was not possessed of expert qualifications on this subject. However, the witness was not asked to give an opinion as an expert. She was merely asked to testify as to what she had observed. This she was competent to do, and the court’s ruling was correct.
Plaintiff’s first four assignments of error are overruled. The record is replete with evidence as to the nature and extent of plaintiff’s injuries which were severe, how they were received, the normal procedure for performing the test which was being performed, the usual and acceptable procedures of restraint used, and the methods used on this occasion. The evidentiary rulings of the court did not result in prejudice to plaintiff.
Plaintiff’s next six assignments of error are directed to the charge of the court to the jury. We do not deem it necessary to set out the alleged errors in seriatim. Suffice it to say that we have carefully examined the charge, and when considered as a whole, we find it free from prejudicial error.
Plaintiff further contends that the trial court erred in overruling his motion to set aside the verdict as being against the greater weight of the evidence. Plaintiff concedes that this motion is directed to the sound discretion of the presiding judge whose ruling is not reviewable on appeal in the absence of abuse of discretion. Frye and Sons, Inc. v. Francis, 242 N.C. 107, 86 S.E. 2d 790 (1955). We find no abuse of discretion. On the contrary, the evidence is clear that the only incident known to defendant resulting in injury to anyone was an occasion on which his younger daughter fell from the horse some four years prior to this accident and an occasion when defendant himself fell from
In the trial of this matter, we find
No error.
