PARRISH
v.
BRYANT et al.
No. 741.
Supreme Court of North Carolina.
February 25, 1953.*727 H. Clay Hemric, Burlington and Long & Long, Graham, for plaintiff, appellant.
Sanders & Holt and Cooper & Cooper, Burlington, for defendants, appellees.
JOHNSON, Justice.
The plaintiff stresses his exception to the refusal of the court to permit him to offer in evidence a transcript of the sworn testimony of S. T. Mullen, a State Highway patrolman, as given in the trial of the criminal case of State v. David C. Bryant in the Burlington Municipal Recorder's Court on 20 December, 1950. This testimony was taken at the trial of the criminal case by a court reporter, and in the instant trial below it was stipulated by the defendants that the transcript of the evidence was authentic and correct, and that if the court reporter were present she would so identify the transcript. Also, it had previously been testified by Lt. C. L. Willard, of the State Highway Patrol, that witness Mullen was no longer with the Highway Patrol, but at the time of the trial was in Atlanta, Georgia. It was further shown that one of the defendants in the present case was the identical defendant in the previous criminal case, and that the other defendant in the present case was the employer of the individual defendant, and further that in the trial of the criminal case the witness Mullen was cross-examined on behalf of the defendant Bryant by his attorney, who represents both defendants in the present case. The plaintiff, on the basis of these circumstances, insists that the transcript of Mullen's former testimony should have been received in evidence.
This evidence was properly excluded. It is subject to challenge on a number of grounds, one of which is failure to show identity of issues.
One of the cardinal rules governing the admissibility of testimony given at a former trial is that it must be made to appear that the issues in the former action were substantially the same as in the pending action, the theory being that unless the issues were the same, the crossexamination would not have been directed to the same material points of investigation, and necessarily could not have been an adequate test for exposing testimonial inaccuracies. Wigmore on Evidence, Third Ed., Vol. 5, Sections 1386 and 1387; 31 C.J.S., Evidence, § 385. See also Citizens Bank & Trust Co. v. Reid Motor Co., 216 N.C. 432, 5 S.E.2d 318; McLean v. Scheiber, 212 N.C. 544, 193 S.E. 708; Stansbury, North Carolina Law of Evidence, Sec. 145; 20 Am.Jur., Evidence, Sec. 694; Annotation: 46 A.L.R. 463; Wigmore on Evidence, Third Ed., Vol. 5, Sec. 1404; Smith v. *728 Moore, 149 N.C. 185, 62 S.E. 892; Cf. Settee v. Charlotte Electric R. R., 171 N. C. 440, 88 S.E. 734; Dupree v. Va. Home Ins. Co., 92 N.C. 417.
This question of identity of issues is a preliminary one to be decided by the court from the record of the former trial. 20 Am.Jur., Evidence, Sec. 691.
The record here reflects no such preliminary determination. The question whether as against the defendant Bryant, who is presently charged with the negligent violation of several highway safety statutes, the issues in the criminal case were the same as in the present civil action, rests entirely in conjecture. Whereas, it is noted that one of the crucial issues involved in the present civil action is the issue of contributory negligence, based on allegations that the plaintiff violated G.S. § 20-161 by parking on the main-travelled portion of the highway. Certainly, this question was not directly in issue in the former criminal action against Bryant.
For this failure to show identity of issues, the proffered evidence was properly excluded.
Next, the plaintiff assigns as error the charge of the court in reference to G.S. § 20-161, which prohibits the parking of an automobile "upon the paved or improved or main traveled portion of any highway, outside of a business or residence district, when it is practicable to park * * * off * * * the [pavement] * * *."
Here the plaintiff insists that the court erred in failing to charge the jury in reference to the proviso contained in the statute which provides in effect that in no event shall a vehicle be left unattended on the main-travelled portion of a highway unless a clear width of at least 15 feet be left open for travel opposite the vehicle, nor unless a clear view of the vehicle may be obtained from a distance of 200 feet in both directions.
As to this contention, it is enough to say that no phase of the evidence brought into operation the provisions of the proviso of this statute; and the case was not tried on that theory. All the evidence tends to show that the highway at the place of collision was 26 feet wide and a clear view at that point was obtainable from the west for more than 200 feet. The testimony to the effect that the Studebaker car was parked on the pavement placed it thereon for distances varying from 18 inches to 2 feet, thus leaving at least 24 feet of the main-travelled portion of the highway open for the passage of other vehicles. Besides, if it should be conceded that the proviso was applicable, on this record it is not perceived how a failure to charge thereon would have been hurtful to the plaintiff. The omission, it would seem, would have been helpful to him. At any rate, the exception is without merit. It is overruled.
We come now to the exceptive assignments of error based on the failure of the trial court to point out and explain to the jury the difference between a momentary stop and the "parking and leaving standing" of a vehicle.
Here, again, the plaintiff's contention runs contrary to the theory of the trial. The record discloses that the case was tried wholly on the theory of whether the Studebaker car was parked on or off the main-travelled portion of the highway. The plaintiff alleged and contended that his car was entirely off the pavement and in a driveway leading to a service station; whereas, the defendants contended the car was left on the pavement. The record reflects nothing tending to show that the plaintiff claimed exemption from the statute, G.S. § 20-161, under the doctrine of momentary stoppage, as explained by Barnhill, J., in Peoples v. Fulk, 220 N.C. 635, 18 S.E.2d 147.
To the contrary, the record discloses that the plaintiff several times in his pleadings refers to his car as having been parked; and his witnesses made numerous similar references.
The theory upon which a case is tried in the lower court must prevail in considering the appeal and interpreting the record and determining the validity of the exceptions. General Finance & Thrift Corp. v. Guthrie, 227 N.C. 431, 42 S.E.2d *729 601; Hinson v. Shugart, 224 N.C. 207, 29 S.E.2d 694. As stated by Brogden, J., in Weil v. Herring, 207 N.C. 6, at page 10, 175 S.E. 836, at page 838, "* * * the law does not permit parties to swap horses between courts in order to get a better mount in the Supreme Court."
The rest of plaintiff's exceptive assignments have been examined. They are without merit. Error has not been made to appear. The verdict and judgment will be upheld.
No error
PARKER, J., having presided in the court below, took no part in the consideration or decision of this case.