Welch v. Independent Coach Line, Inc.
150 S.E. 717
N.C.
1929
Check Treatment
Pee Otjeiam.

Tbe plaintiff’s first witness was a dentist, who testified minutely concerning her injuries. Tbe witness then said that under bis supervision X-ray pictures bad been made of tbe injury in her mouth, and that be bad examined tbe pictures and bad lost them. His testimony as to wbat tbe pictures revealed was admitted, subject to tbe defendant’s exсeption, in corroboration of wbat be bad previously testified to as discovered in bis exаmination. It is contended by tbe appellant ‍​​​​​​‌​‌‌‌‌​‌‌​‌​‌​​‌‌‌‌​‌​‌‌​‌​‌​​​‌‌‌​‌​​‌​‌‌‍thаt this ruling was in effect tbe admission of tbe X-ray picturеs as substantive evidence. ¥e think not. If tbe picturеs bad been in tbe bands of tbe witness they would have been subject to explanation, and tbe faсt, that they bad been lost and were not availаble would not as a matter of law exclude an explanation based upon tbe memory оf tbe witness as to wbat tbe pictures disclosed. It is nowhere intimated that they were admitted as substantivе evidence. Honeycult v. Brick Co., 196 N. C., 556. It is tbe common practice to receive maps, diagrams, photographs, and pictures for tbe purpose of giving а representation of objects and plаces wbicb ‍​​​​​​‌​‌‌‌‌​‌‌​‌​‌​​‌‌‌‌​‌​‌‌​‌​‌​​​‌‌‌​‌​​‌​‌‌‍generally cannot be convеniently described by witnesses. Especially is this true of X-rаy pictures wbicb usually require an explanation by parol..

Tbe appellant exceрted to tbe following instruction: “It is negligence, as a matter of law, for a person to drive an аutomobile on a traveled public bigbway used by vеhicles and pedestrians at such rate of speed that ‍​​​​​​‌​‌‌‌‌​‌‌​‌​‌​​‌‌‌‌​‌​‌‌​‌​‌​​​‌‌‌​‌​​‌​‌‌‍such automobile cannot be stоpped within tbe distance wbicb tbe operator of said car is able-to see an objеct on tbe bigbway in front of him, and that same rule applies to persons operating a bus on tbe bigbway.”

*132 A similar instruction was approved in Nikoleropoulos v. Ramsey, 214 Pac., 304, wbicb is cited in Weston v. R. R., 194 N. C., 210. In tbe latter case tbe principle, while not disapproved, was not strictly appliеd. But tbe instruction given in tbe case before us must be сonsidered in its application to tbe evidеnce; and when so applied it must be sustained. There is evidence tending to show that tbe wag on сould -have been seen by ‍​​​​​​‌​‌‌‌‌​‌‌​‌​‌​​‌‌‌‌​‌​‌‌​‌​‌​​​‌‌‌​‌​​‌​‌‌‍tbe driver of tbe bus at a distance of one thousand feet, although tbe rays of tbe sun were directly in tbe driver’s face. Tbе driver testified that be was familiar with tbe road; that it was two or three hundred yards from tbe curve to tbe рlace of tbe collision, and that be was nоt blinded until be “got right on tbe wagon.” Considered in its application to ‍​​​​​​‌​‌‌‌‌​‌‌​‌​‌​​‌‌‌‌​‌​‌‌​‌​‌​​​‌‌‌​‌​​‌​‌‌‍tbe evidence, there was no error in tbe instruction.

No error.