Pope v. McLamb , 23 N.C. App. 666 ( 1974 )

MORRIS, Judge.

By her first assignment of error plaintiff contends that the action of the court in allowing into evidence the testimony of the patrolman as to defendant’s statement with respect to his speed was prejudicial error. We agree that the court erred in admitting this testimony. It was clearly hearsay. It was elicited on cross-examination, could only be corroborative if defendant testified, and defendant did not testify and subject himself to cross-examination. Nevertheless, we fail to see how plaintiff has been prejudiced. The patrolman testified the speed limit at that point was 45 miles per hour for defendant. Plaintiff’s witnesses testified the truck was travelling at a speed of 60 miles per hour and neither reduced its speed nor sounded its horn. The jury obviously believed this testimony and gave no credence to the statement of defendant that he was driving 45 miles per hour, since they answered the issue of defendant’s negligence in favor of plaintiff. We cannot see that plaintiff has been prejudiced in any way by the admission of this evidence, and this assignment of error is overruled.

Assignment of error No. 2 is based upon an exception taken to a portion of the charge of the court in which the court, in recapitulating the evidence, repeated the hearsay testimony allowed into evidence and discussed above. For the same reasons set out above, this assignment of error is also overruled.

Finally, plaintiff argues that the court erred in its charge to the jury with respect to the duty of care placed upon an infant and with respect to the standard of care required of a motorist upon observing an infant upon the highway. The court, in' charging upon the second issue, instructed the jury that the evidence tended to show that plaintiff’s intestate was, at the time of the accident, 11 years of age; that under the law of this State, a child under 7 is incapable of contributory negligence and that a child between 7 and 14 is presumed to be incapable of contributory negligence, but that that presumption may be rebutted by showing that the child failed to exercise that degree of care which a child of its age, capacity, discretion, knowledge and experience would ordinarily exercise under the same or similar circumstances. The court further instructed that in the case of a child between 7 and 14 years, the burden would be upon the party attempting to establish the child’s contributory negligence to show, by the greater weight of the evidence, that the child had failed to use the degree of care which a child of his age, capacity, discretion, knowledge and experience would ordinarily have exercised under the same or similar circumstances. The court, it is true, did not repeat the same verbiage in charging the jury as to what they must find in order to find the plaintiff’s intestate guilty of contributory negligence. However, he did again charge them that the rule previously explained as to the contributory negligence of a child between 7 and 14 would apply in this case.

As to the charge on the standard of care required of a motorist upon observing an infant upon the highway, we think the court’s charge sufficiently conformed to the applicable law.

Considering the charge in its entirety, we find no basis for believing that the jury could have been misled thereby. These assignments of error are, therefore, overruled.

No error.

Judges Hedrick and Baley concur.