Beaman v. Sheppard , 35 N.C. App. 73 ( 1978 )

239 S.E.2d 864 (1978)

Doris M. BEAMAN
v.
Raymond Guy SHEPPARD and the Town of Snow Hill, a Municipal Corporation.

No. 778SC95.

Court of Appeals of North Carolina.

January 17, 1978. Certiorari Denied March 7, 1978.

White, Allen, Hooten & Hines, P.A., by Thomas J. White, III, and Wallace, Langley, Barwick, Llewellyn & Landis by R. S. Langley, Kinston, for plaintiff.

Teague, Johnson, Patterson, Dilthey & Clay by C. Woodrow Teague and Dan M. Hartzog, Raleigh, and Lewis, Lewis & Lewis by John B. Lewis, Jr., Farmville, for defendants.

Certiorari Denied by Supreme Court March 7, 1978.

MARTIN, Judge.

Plaintiff first contends that the trial court erred in allowing, over objection, defendant Sheppard to state his opinion as to the speed of plaintiff's vehicle. Plaintiff argues that defendant did not have sufficient opportunity under the circumstances to judge the speed of plaintiff's vehicle and form an intelligent opinion.

The rule is well established that it is competent for a person of ordinary intelligence and experience to state his opinion as to the speed of a vehicle when he has had reasonable opportunity to observe the vehicle and judge its speed. State v. Clayton, 272 N.C. 377, 158 S.E.2d 557 (1968); State v. McCall, 31 N.C.App. 543, 230 S.E.2d 195 (1976); Johnson v. Douglas and Ferguson v. Douglas, 6 N.C.App. 109, 169 S.E.2d 505 (1969). The trial court must determine from the facts and circumstances as they appear in the evidence whether the witness has had a reasonable opportunity to observe the vehicle and judge its speed. Johnson v. Douglas and Ferguson v. Douglas, supra.

In the instant case, defendant testified to the effect that he observed the plaintiff's vehicle coming towards him continuously for about four car lengths or approximately 80 feet. He then stated that, in his opinion, plaintiff's vehicle was traveling 65 to 70 miles per hour. Though similar to the facts of cases in which such opinion testimony was excluded, see Fleming v. Twiggs, 244 N.C. 666, 94 S.E.2d 821 (1956); Johnson v. Douglas and Fergnson v. Douglas, supra, the instant case is distinguishable in that defendant's observation of plaintiff's vehicle was continuous—an important factor in assessing the sufficiency of his observation. Any question as to defendant's ability to judge the speed of plaintiff's vehicle based on his opportunity to observe goes to the weight of his testimony rather than its admissibility. Ray v. Membership Corp., 252 N.C. 380, 113 S.E.2d 806 (1960); State v. McCall, supra. Accordingly, this contention is without merit.

Plaintiff further contends that the trial court erred in its charge to the jury relative to the doctrine of sudden emergency. She argues, in the first instance, that the doctrine of sudden emergency was not applicable to the instant case, and additionally, that the court failed to relate the instructions on the doctrine to any issue in the case.

Defendants in the instant case invoked and relied upon the doctrine of sudden emergency. This doctrine, simply stated, is that "`[o]ne who is required to act in an emergency is not held by the law to the wisest choice of conduct, but only to such choice as a person of ordinary care and prudence, similarly situated, would have made.'" Rodgers v. Thompson, 256 N.C. 265, 123 S.E.2d 785 (1962). Davis v. Connell, 14 N.C.App. 23, 187 S.E.2d 360 (1972). Defendants' evidence tended to show that defendant Sheppard pulled his truck off the paved portion of the road because plaintiff's vehicle was headed directly towards him; and he pulled back onto the road to avoid hitting a road sign. Thus, the evidence was clearly sufficient to raise an inference that defendant was confronted by a "sudden emergency." Accordingly, it was for the jury to determine the effect of the doctrine on the facts of the instant case and an instruction thereon was proper. See Day v. Davis, 268 N.C. 643, 151 S.E.2d 556 (1966); Davis v. Booth, 29 N.C.App. 742, 225 S.E.2d 588 (1976).

After instructing the jury on the substantive issues arising in the case, the trial court, without relating it to any particular issue, gave the jury a correct general instruction relating to the doctrine of sudden emergency. Plaintiff contends that this was error for which she is entitled to a new trial. We cannot agree.

It is true that our Supreme Court has held that where a party is charged with negligence, the failure to relate that party's plea of sudden emergency and the evidence pertinent thereto to the issue of negligence is erroneous and prejudicial, and is not cured by a later general instruction not related to the particular issue. Day v. Davis, supra; Hunt v. Truck Supplies, 266 N.C. 314, 146 S.E.2d 84 (1966). In the instant case, it is defendants who seek to have the jury scrutinize their actions in light of the sudden emergency doctrine. Thus, any failure to properly relate this doctrine to the issue of defendants' negligence before the jury is prejudicial to defendants ; plaintiff, however, is not prejudiced thereby and cannot be heard to complain. Builders Supply v. Midyette, 274 N.C. 264, 162 S.E.2d 507 (1968).

Plaintiff's remaining assignments of error are without merit. The judgment of the trial court is hereby affirmed.

BROCK, C. J., and CLARK, J., concur.