Hester v. Horton Motor Lines
14 S.E.2d 794
N.C.
1941
Check Treatment
Stacy, C. J.

The instant case is controlled by the principles announced in Lewis v. Hunter, 212 N. C., 504, 193 S. E., 814, and West v. Baking Co., 208 N. C., 526, 181 S. E., 551.

Appeal op Heebeet OolemaN.

The record discloses a clear case of negligence on the part of the driver of the Ford coupe in which plaintiff’s intestate was riding at the time of her injuries. He and his companions had spent a night out, riding around town, drinking, etc. It ended in tragedy. Coleman’s contention that his ear struck the side of the bridge as a result of a blowout was not accepted by the jury.

The defendant’s plea of estoppel by reason of the payments made in the criminal prosecution was properly overruled. Meacham v. Larus & Bros. Co., 212 N. C., 646, 194 S. E., 99; LeRoy v. Steamboat Co., 165 N. C., 109, 80 S. E., 984. The matters here litigated were not involved in that action, nor were they there asserted, either in the right now claimed or otherwise. Gillam v. Edmonson, 154 N. C., 127, 69 S. E., 924. The jury has credited him with all payments made in the criminal prosecution, and this is as much as he can expect in the present action. Holland v. Utilities Co., 208 N. C., 289, 180 S. E., 592; 24 C. J. S., 1260.

There is one exception which the defendants stress with confidence. It deserves to be noticed. On the second day after the injury a traffic officer of the city of Greensboro, F. B. Money, took the defendant Helms, the driver of the truck, to the scene of the wreck and there had Helms describe the situation and point out to him how it all happened. Over objection, Money was permitted to relate on the witness stand what Helms had said to him about the accident and how it occurred. It is readily conceded that at the time this evidence was offered, it was competent only as against the defendant Helms, and was not competent as *746 against bis employer or the other defendant. Parrish v. Mfg. Co., 211 N. C., 7, 188 S. E., 817. What an agent or employee says after an event, merely narrative of tbe past occurrence, is generally regarded as hearsay and is not competent as substantive evidence against tbe principal or employer. Hubbard v. R. R., 203 N. C., 675, 166 S. E., 802. It appears, however, that the defendant Helms later took the witness stand and gave in substance the same testimony. This made the evidence of officer Money competent in corroboration, and rendered the prior exception feckless.

The impression is gained from a careful perusal of the remaining exceptions that the verdict and judgment should be upheld as against the defendant Coleman. It would serve no useful purpose to consider the assignments in detail or seriatim, as they only call for the application of familiar principles. They are not sustained.

Appeal of Hoeton Motor Lihes, Inc., and H. L. Helms.

The appeal of the driver of the truck and his employer presents a different case from that of the defendant Coleman. Helms testified that he passed the scene of the wreck without striking the body of the injured girl as it lay prone upon the pavement and that he stopped immediately thereafter and returned to render assistance. The plaintiff contends that the' truck ran over the deceased and hastened her death. Helms was not permitted to testify that, in his opinion, if the loaded truck, weighing 37,500 pounds, had passed over any part of the body of the deceased “she would have been crushed or smashed.” Whereupon the defendants called Dr. A. J. Tannenbaum, a medical expert, who saw the deceased and attended her before her death. He proffered the opinion that, from a professional examination of the injuries found upon the body of the deceased — considering the nature, condition and position of the wounds— none of them was caused by a truck striking or passing over her body. This evidence was excluded. True, he was allowed to say that in his opinion the injuries found upon the body of the deceased came from her striking the concrete when she was thrown from the car, but under the decisions in George v. R. R., 215 N. C., 773, 3 S. E. (2d), 286, and McManus v. R. R., 174 N. C., 735, 94 S. E., 455, it would seem that this witness, who proposed to speak as an expert and from a professional and personal examination of the body of the deceased, was competent to give in substance the evidence sought to be elicited. It apparently comes within the purview of expert, opinion evidence. Ferebee v. R. R., 167 N. C., 290, 83 S. E., 360; Parrish v. R. R., 146 N. C., 125, 59 S. E., 348; S. v. Jones, 68 N. C., 443. The materiality of the evidence is not questioned. It goes to the heart of the case so far as the corporate *747 defendant and the driver of the truck are concerned. Its exclusion entitles them to a new trial.

On appeal of Herbert Coleman,

No error.

On appeal of Horton Motor Lines, Inc., and H. L. Helms,

New trial.