Vanhoy v. Phillips , 15 N.C. App. 102 ( 1972 )

MALLARD, Chief Judge.

Defendants assign as error the failure of the trial judge to permit Steve Trivette (Trivette), one of defendants’ witnesses who would have testified that “the next day, or the day after,” he went back to the scene near where the “Chevy” was parked and that “around the white line there was some spots of blood there. There was glass all over the place.”

The rule is that whether evidence of the existence of a particular state of affairs at one time is competent as evidence of the same state of affairs at another time depends upon the length of time intervening, the showing, if any, as to whether in the meantime conditions had changed, the probability of change and whether in view of the nature of the subject matter the condition would not ordinarily exist at the time referred to unless it had also existed at the prior time in question. Jenkins v. Hawthorne, 269 N.C. 672, 153 S.E. 2d 339 (1967); Miller v. Lucas, 267 N.C. 1, 147 S.E. 2d 537 (1966). “The question is one of the materiality or remoteness of the evidence in the particular case, and the matter rests largely in the discretion of the trial court.” Stansbury, N. C. Evidence 2d, § 90.

Defendants used the investigating State Highway Patrolman as a witness, and this witness testified that he arrived on the scene just after Vanhoy had been placed in an ambulance. On cross-examination, he testified: “I didn’t find any glass on the pavement, there could have been some, but I didn’t find it. I didn’t find any glass anywhere but in the car.” This would indicate that if there were glass “all over the place,” there must have been a change in the conditions existing at the scene between the time of the accident and the time Trivette made his belated examination thereof a day or two later. Furthermore, the fact that the witness Trivette would have testified that “(a)round the white line there was some spots of blood there” would have been of little, if any, substantial material value because it was stipulated that Vanhoy died as a result of a collision with the automobile being operated by Phillips, and defendant’s exhibit number 1 is a color photograph that indicates there were broken white lines in the center of the road, and a white line on the outer edge of each side of the paved portion. Trivette did not specify on what white line the spots of blood were when he saw them a day or two later. We hold that the trial judge did not abuse his discretion and did not commit prejudicial error in failing to allow this testimony in evidence.

We hold that there was ample evidence to require submission of the case to the jury and that the trial judge properly submitted it on the three issues of negligence, contributory negligence, and damages. We have considered all of the appellants’ assignments of error and are of the opinion that the defendants have had a fair trial free from prejudicial error.

No error.

Judges Campbell and Brock concur.