Wright ex rel. Frenck v. Blue Bird Cab Co. , 31 N.C. App. 525 ( 1976 )

HEDRICK, Judge.

By their first two assignments of error plaintiffs contend the court erred in refusing to admit as against defendant Cab Company defendant Crews’ admissions concerning the circumstances of the accident. By their tenth assignment of error plaintiffs contend the court erred in granting defendant Cab Company’s motion for a directed verdict at the close of plaintiffs’ evidence. Plaintiffs neither alleged nor offered proof of any independent negligent acts on the part of Cab Company. Therefore, Cab Company could only be vicariously liable for the alleged negligent acts of its agent Crews under the doctrine of respondeat superior. Crews’ admissions were admitted in the case against himself, and were considered by the jury in rendering a verdict of whether Crews was negligent or not. The jury verdict absolving Crews of any liability also relieves Cab Company of liability, and renders moot any question of error on the part of the trial court in refusing to admit Crews’ admissions into evidence against Cab Company or in granting Cab Company’s motion for a directed verdict. Bullard v. Bank, 31 N.C. App. 312, 229 S.E. 2d 245 (1976). These assignments of error are not sustained.

In his instructions to the jury on the issue of sudden emergency the trial judge stated, “[I]f the defendant was confronted by a sudden emergency caused by the negligence of another in running out in front of him, that he is not held to the wisest choice of conduct, but only to such choice as a person of ordinary prudence similarly situated would have made.” Immediately before the jury began deliberation, the court further charged the jury as follows:

“Now, ladies and gentlemen of the jury, during the noon recess one of the lawyers called my attention to a statement that I made to you, and I think I probably inadvertently used the wrong word in my charge to you this morning. If you will recall, I charged you that if the defendant was confronted by a sudden emergency created by the negligence of another. Now, I inadvertently used the word ‘negligence.’ I should have used ‘acts.’ I should have said this, and this is what I intended to say to you: I charge that if the defendant was confronted by an emergency created by the acts of another in suddenly running out in front of him, that he is not held to the wisest choice of conduct but only to such choice as a person of ordinary prudence similarly situated would have made. But this principle of sudden emergency does not apply to one who by his own negligence has brought about or contributed to the emergency. In other words, ladies and gentlemen, a child under the age of seven in the State of North Carolina cannot be guilty of any negligent acts.”

By their third assignment of error plaintiffs contend the court erred in referring to the “negligence” of the minor plaintiff in its original charge to the jury because the two-year-old plaintiff is legally incapable of negligence. They argue further that the correcting instruction quoted above did not remove the alleged prejudicial effect of the original instruction. We do not agree. At trial no issue of contributory negligence on the part of the minor plaintiff was raised, and we do not see how the trial judge’s inadvertent use of the word “negligence” with respect to the minor plaintiff's actions could in any way prejudice the plaintiffs, but, in any event, the court’s later clarifying instruction removed any possible prejudice caused by the original instruction. This assignment of error is without merit.

The court excluded from evidence the following testimony elicited by plaintiffs from defendant Crews in his deposition.

“ [Q-] Did the child travel in the air sixteen feet?

A. No, sir. If he had, I believe I’d have seen him.

Q. He traveled on the ground then? Sliding or rolling

or—

A. It may be — no, sir, I just think — well he was undoubtedly up off the ground, yes, but — ?

Q. In the air then?

A. I guess he must have been, sir. When I saw him he was laying flat on his face.”

By their fourth assignment of error plaintiffs contend that in excluding the foregoing portion of defendant Crews’ deposition the court erred to their prejudice because its ruling prohibited them “from proving that this two-year-old child was not merely ‘tapped’ by the automobile’s impact, but was in fact projected no less than 16 feet from the point of impact, and thereby causing severe brain damage to this minor child.” Since the jury did not reach the issue of damages, we do not perceive any prejudice to plaintiffs in the exclusion of the testimony. Long v. Clutts, 16 N.C. App. 217, 192 S.E. 2d 131 (1972), cert. denied 282 N.C. 426, 192 S.E. 2d 836 (1972). Moreover, an examination of the excluded testimony reveals that the questions called for the witness to speculate as to matters over which he obviously had little if any knowledge. We find no prejudicial error in the court’s exclusion of this testimony.

By their fifth assignment of error plaintiffs contend the court erred in not allowing former Officer Cook to testify what the collision report “indicated” with respect to the location of Mrs. Kellogg’s car in the driveway. Assuming that the question objected to by the defendant and excluded by the court was meant to impeach Cook by showing that what he put on the collision report was inconsistent with his testimony at trial, and assuming therefore that the court erred in sustaining defendant’s objection, the alleged error is not subject to review because we are unable to determine if plaintiffs have been prejudiced by the alleged error, since the answer to the question is not included in the record. State v. Fletcher, 279 N.C. 85, 181 S.E. 2d 405 (1971); Stansbury, N. C. Evidence 2d (Brandis Rev.) § 26.

Plaintiffs contend the court erred in excluding from evidence the deposition of Mrs. Kellogg. Mrs. Kellogg testified on both direct and cross examination at the trial. When plaintiffs offered Mrs. Kellogg’s deposition into evidence, they conceded it was “somewhat cumulative” to her testimony at trial. We have carefully examined Mrs. Kellogg’s deposition and her testimony at trial, and find them to be substantially identical. It is within the trial judge’s discretion to exclude such repetitious testimony, Reeves v. Hill, 272 N.C. 352, 158 S.E. 2d 529 (1968), and we find no abuse of discretion in the judge’s exclusion of the testimony.

By their seventh assignment of error plaintiffs contend the court erred in excluding the minor plaintiff’s hospital records introduced for the purpose of explaining and illustrating the extent of the physical injuries to the minor plaintiff. Obviously since the jury never reached the issue of damages, the exclusion of the testimony is not prejudicial to the plaintiffs. Long v. Clutts, supra. This assignment of error is not sustained.

The parties stipulated that the speed limit in the area of Argonne Boulevard was 35 miles per hour at the time of the accident. Defendant Crews testified that he was driving 30 miles per hour just before the minor plaintiff ran out in front of him. Plaintiffs assign as error the court’s exclusion of testimony as to defendant Crews’ knowledge of the posted speed limit on Argonne Boulevard. The court properly excluded the evidence as being irrelevant. This assignment of error has no merit.

The plaintiffs’ other assignments of error are formal and raise no additional questions. We hold the plaintiffs had a fair trial free from prejudicial error.

No error.

Chief Judge Brock and Judge Parker concur.