Gibson v. Whitton
79 S.E.2d 196
N.C.
1953
Check Treatment
JOHNSON, J.

The defendant urges that his motion for judgment as of nonsuit should have been allowed upon the ground that the plaintiff’s evidence establishes contributory negligence as a matter of law.

Contributory negligence is an affirmative defense which must be pleaded and proved. G.S. 1-139. Even so, nonsuit is proper when the plaintiff’s own evidence establishes this defense (Bundy v. Powell, 229 N. C., 707, 51 S.E. 2d 307), but it may not be entered when it is necessary to rely in whole or in part upon the defendant’s evidence, or when diverse inferences upon the question are reasonably deducible from plaintiff’s evidence, the rule being that a motion for nonsuit on the ground of contributory negligence will be allowed only when the plaintiff’s evidence is so clear that no other reasonable inference is deducible therefrom. Bundy v. Powell, supra; Beck v. Hooks, 218 N.C. 105, 10 S.E. 2d 608. See also Mikeal v. Pendleton, 237 N.C. 690, 75 S.E. 2d 756; Grimm v. Watson, 233 N.C. 65, 62 S.E. 2d 538; Hobbs v. Drewer, 226 N.C. 146, 37 S.E. 2d 121.

An examination of the record in the light of these principles of law leaves the impression that the plaintiff made out a clear case of actionable *16 negligence; free of facts and circumstances shown by his own evidence amounting to contributory negligence as a matter of law. The motion for judgment as of nonsuit was properly overruled.

The cases relied on by the defendant, Morisette v. Boone, 235 N.C. 162, 69 S.E. 2d 239, and Cox v. Freight Lines, 236 N.C. 72, 72 S.E. 2d 25, are factually distinguishable.

The next group of exceptions brought forward relate to rulings on the reception of evidence. In response to questions put to the plaintiff in respect to what the defendant said to him at the hospital the day after the collision, the trial court permitted the plaintiff to testify over objec-ión: “He said if I would wait until he got out of the hospital that he would take care of everything. . . . He said, he would take care of everything and I didn’t have anything to worry about.”

The defendant insists that this line of testimony should have been excluded as amounting to an offer of compromise. It is elemental that evidence of an offer to compromise, as such, is inadmissible as an admission of the party making it. Dixie Lines v. Grannick, 238 N.C. 552, 555, 78 S.E. 2d 410; Merchant v. Lassiter, 224 N.C. 343, 30 S.E. 2d 217; Stansbury, N. C. Evidence, Sec. 180. Dean Wigmore says: “The true reason for excluding an offer of compromise is that it does not ordinarily proceed from and imply a specific belief that the adversaras claim is well founded, but rather a belief that the further prosecution of that claim, whether well founded or not, would in any event cause such annoyance as is preferably avoided by the payment of the sum offered. In short, the offer implies merely a desire for peace, not a concession of wrong done.” Wigmore on Evidence, Third Ed., Yol. Ill, Sec. 1061, p. 28.

But be this as it may, the challenged statement, when considered in context, appears not to have been made on the theory of an offer to compromise, but rather as tending to show an admission of liability on the part of the defendant. The evidence was competent and admissible for that purpose. Wells v. Burton Lines, 228 N.C. 422, 45 S.E. 2d 569; Hobbs v. Coach Co., 225 N.C. 323, 34 S.E. 2d 211. See also Brown v. Wood, 201 N.C. 309, 160 S.E. 281.

The defendant also assigns as error the rulings of the court in permitting the witness M. L. Kimbro to recount, over objections, the circumstances surrounding the wreck as told him by the plaintiff. The following is an illustrative portion of witness Kimbro’s testimony to which the •defendant excepted:

“. . . He (the plaintiff) told me roughly, . . . how this collision •came about.
“Q. What did he tell you ?
“Objection.
“Mr. Fairley: I ask it for the purpose of corroboration, your Honor.
*17 ■ “Court : OVERRULED. Tbis is offered only for tbe purpose of corroborating Mr. Gibson, if yon find it does corroborate.
“EXCEPTION No. 21.
“A. . . ., and be told me after be stopped at tbe red light at Pecan and Seventh, be was coming on down, be seen tbe headlights of tbe car coming up over tbe rise of Laurel Avenue. He thought be was going to stop. . . .
“Q. Did be say whether or not tbe car came to a stop at tbe stop sign ?
“Objection. Overruled. Exception No. 22.
“A. He said it didn’t stop; that it came on out in front of him.”

Tbe defendant seeks to invoke tbe rule that corroborative evidence of tbis kind — previous consistent statements — ordinarily is not admissible to bolster tbe testimony of a witness until tbe witness has been impeached in some way. Stansbury, N. C. Evidence, Sec. 50. Tbe gist of defendant’s contention is that tbe plaintiff bad been cross-examined in mere routine fashion without impairment of bis credibility. However, our examination of tbe record impels tbe other view. Tbe general tenor of tbe cross-examination, covering 10 pages of tbe printed record, discloses an earnest and vigorous effort to discredit tbe plaintiff’s testimony in chief. And it is manifest that tbe efforts of counsel were not without some measure of success. As to tbis, attention is directed to tbe plaintiff’s admission of error in bis drawing: “Tbe first mark indicating tbe position of my automobile that I made was right here at tbe south curb. . . . That’s tbe mark that I put on there. "When I put that mark there, well, I just made a mistake; I meant to put it up closer to tbe center line. . . .” It is also noted that before tbe witness Kimbro testified as to bis conversation with tbe plaintiff, tbe defendant bad cross-examined plaintiff’s witness Wallace in respect to tbe statements plaintiff bad made to him about tbe collision. The application of tbe rules regulating tbe reception and exclusion of corroborative testimony of tbis kind, so as to keep its scope and volume within reasonable bounds, is necessarily a matter which rests in large measure in the discretion of tbe trial court. Tbe rulings of Judge Sharp in admitting tbe corroborative testimony of tbe witness Kimbro have tbe sanction of authoritative decisions of tbis Court. S. v. Exum, 138 N.C. 599, 50 S.E. 283. Stansbury, N. C. Evidence, Sec. 31, footnotes, for collection of cases. For criticism of tbe rule which sanctions tbis kind of evidence, see Wig-more on Evidence, Third Ed., Sec. 1122 et seq.

As to tbe further contention that portions of tbe corroborative statements did not in fact corroborate tbe plaintiff’s testimony (S. v. Rollins, 113 N.C. 722, 18 S.E. 394), it is enough to say that no motion was made to strike any part of tbe witness’ answers. Tbis renders tbe defendant’s latter contention untenable. Tbe rule is that where a question asked a witness is competent, exception to bis answer, when incompetent in part, *18 should be taken by motion to strike out the part that is objectionable. Steelman v. Benfield, 228 N.C. 651, 46 S.E. 2d 829; Luttrell v. Hardin, 193 N.C. 266, 136 S.E. 726. See also Cathey v. Shope, 238 N.C. 345, 78 S.E. 2d 135.

The remaining exceptions brought forward, including some 13 which relate to the charge, have been examined. They are without substantial merit. The rulings and instructions to which these exceptions relate are either correct or nonprejudicial under the rule of contextual construction. Prejudicial error has not been made to appear. The verdict and judgment will be upheld.

No error.