45 S.E.2d 351 | N.C. | 1947
This was an action to recover damages for injury to plaintiffs' motor truck and trailer growing out of collision on the highway with defendants' truck and trailer. Both vehicles were being used in the transportation of gasoline, plaintiffs' unit being at the time empty and traveling east, and defendants' unit at the time loaded with gasoline and traveling west.
Plaintiffs alleged that the collision and consequent injury to their truck and trailer was caused by the negligence of defendants' driver in *299 the operation of defendants' truck. The defendants denied negligence on part of their driver, and set up a counterclaim for injury to defendants' truck and cargo, alleging that the collision and resultant injury to defendants' property was caused solely by the negligence of plaintiffs' driver.
Appropriate issues were submitted to the jury who for their verdict found that the plaintiffs' property was not damaged by negligence of the defendants, and on issues addressed to defendants' counterclaim the jury found defendants' property was damaged by the negligence of the plaintiffs and awarded compensation therefor against the plaintiffs.
From judgment on the verdict, plaintiffs appealed. A collision of oil trucks on the highway near Maxton, North Carolina, resulted disastrously. Plaintiffs' truck and trailer were badly battered, and defendants' truck and trailer loaded with gasoline were set on fire, the truck destroyed, the contents consumed, and the driver burned to death. This occurred on the night of 19 April, 1946. On 26 April, following, plaintiffs entered suit against defendants for injury to their truck, and the defendants by answer set up their claim for damages against the plaintiffs by way of counterclaim, alleging negligence on the part of plaintiffs' driver. The evidence on the controverted questions of fact as to whose negligence caused the collision was submitted to the jury and decided in favor of the defendants.
The plaintiffs bring up with their appeal from this adverse result several assignments of error. They present the view that there was no competent evidence of negligence on the part of plaintiffs, and that their motion for judgment of nonsuit as to defendants' counterclaim should have been allowed. It appears from the record that plaintiffs interposed motion for nonsuit at the close of defendants' evidence and excepted to its denial, but later offered a witness in rebuttal without thereafter renewing their motion (G.S.,
Plaintiffs also assign error in the ruling of the trial court in admitting in evidence, over objection, a letter written by D. W. Royster, one of defendants, to the plaintiffs, dated 25 April, 1946, in which it was stated that after investigating the wreck in which defendants' gasoline transport unit was destroyed and the driver killed, "we are convinced that this accident was due entirely to the negligence of your driver Lockey, and we are requesting that you arrange for immediate payment for all loss incurred in this wreck." There was no request that the scope of this evidence be restricted. It appeared that on the cross-examination of W. E. Sisson, one of the plaintiffs, he had been shown this letter and asked if he had received it, to which he replied that he recalled "receiving a similar letter some two weeks after the end of this suit." It was admitted that the letter was received by plaintiffs 26 April. The plaintiffs contend this letter contained a self-serving declaration and was incompetent. Defendants' reply that it was competent as showing demand on the plaintiffs, and that immediately on its receipt, the same day, the plaintiffs instituted suit against defendants in New Hanover County where plaintiffs reside, and that defendants, residents of Cleveland County, were therefore compelled to set up their cause of action by way of counterclaim. The defendants also call attention to the testimony of defendant Royster, admitted without objection, that he had investigated the wreck immediately after it occurred, and that he had made a written demand on plaintiffs 25 April, forwarded it by registered mail, and produced the return receipt signed by plaintiffs. Defendants contend the letter was competent to explain or contradict the testimony of Mr. Sisson, and also to corroborate Mr. Royster, and that in either view it was competent.
In any event, we are unable to see how the plaintiffs were prejudiced by the admission of this letter. In the pleadings, read in the presence of the jury, was set forth defendants' allegation that the collision was caused *301
solely by the negligence of plaintiffs' employee, and in the court's charge to the jury in stating the rival claims of the parties as pleaded it was stated that the defendants claimed plaintiffs' driver Lockey was driving in a negligent and careless manner which proximately caused the destruction by fire of defendants' property. Hence, the jury were fully aware that defendants' cross-action was bottomed on the claim that the collision was due entirely to the negligence of plaintiffs' driver, and that defendants were asking compensation for the loss. The letter added nothing to what had already been brought to their attention. If there was error in admitting the letter, which is not conceded, we cannot hold that plaintiffs were prejudiced thereby. Its admission was not of sufficient moment to make it appear that the jury was improperly influenced by it. It is a familiar rule in appellate procedure that the burden is on the appellant not only to show error, but also "that it is material and prejudicial amounting to the denial of some substantial right" (Wilson v. Lumber Co.,
We have examined the other assignments of error brought up in plaintiffs' appeal and find them without substantial merit. No prejudicial error sufficient to warrant a new trial has been shown.
No error.
