Gay v. Walter

283 S.E.2d 797 (1981)

Joseph Daniel GAY and Marilynn F. Gay
v.
Reese B. WALTER.

No. 818SC126.

Court of Appeals of North Carolina.

November 3, 1981.

White, Allen, Hooten, Hodges & Hines, P.A. by John M. Martin, Kinston, for plaintiff-appellant.

Jeffress, Morris, Rochelle & Duke, P.A. by Thomas H. Morris, Kinston, for defendant-appellee.

WELLS, Judge.

This appeal involves questions of possible error in the admission of photographic evidence, in the exclusion of rebuttal testimony, and errors in the trial court's charge to the jury as it relates to a motorist's duty in signaling and making a proper left-hand turn at an intersection. We find no error in the trial.

Plaintiff first assigns as error the admission into evidence of two photographs of the intersection offered by defendant. Plaintiff contends first, that the photographs differed substantially from the actual scene, since they were taken in daylight though the accident occurred after dark; and second, that they were not actually used to illustrate defendant's testimony. A photograph may be used to illustrate testimony as long as it portrays a scene with sufficient accuracy, even though it was not made simultaneously with the event to which the testimony relates. 1 Stansbury's N.C. Evidence (Brandis Revision 1973) § 34. Thus, a photograph is admissible for illustrative purposes^[1] even if it was taken at a different time of day and under different lighting conditions than the event it illustrates. State v. Lester, 289 N.C. 239, 221 S.E.2d 268 (1975), State v. Johnson, 280 N.C. 281, 185 S.E.2d 698 (1971). While plaintiff contends that the witness did not actually use the photographs to explain his testimony, the record shows that defendant testified as to the configuration of the intersection, the relative positions of his car and plaintiff's, and the positions of their automobiles after the collision. The photographs of the intersection were used to illustrate defendant's testimony. We overrule this assignment.

In her second assignment of error, plaintiff contends that the trial court erred in refusing to allow plaintiff's rebuttal testimony.

When defendant rested, plaintiff offered the testimony of two rebuttal witnesses, Joseph Ray Brochure and Joseph Gay. The trial court sustained defendant's objections to their testimony. Had Brochure been allowed to testify, he would have testified that he was a licensed land surveyor, that he had made a survey of the intersection of North Heritage and Daniel Street and had prepared an exhibit based on his survey showing the width of the two streets and the width of the lanes of travel of the two streets at the intersection. Gay would have testified to corroborate the testimony of Brochure. Plaintiff concedes that the admission of rebuttal testimony is a matter within the discretion of the trial court, but contends that the trial court abused its discretion in this case. The use of the term "rebuttal" may be misleading in such cases as the one before us. The record here discloses that plaintiff testified that her husband, Joseph Gay, a former highway patrolman, had measured the streets at the intersection; and yet, when Mr. Gay testified in plaintiff's behalf, he offered no such testimony. Further, both parties offered photographs to illustrate the intersection, and plaintiff offered testimony generally as to the width of North Heritage Street. It would, therefore, appear that the testimony offered by plaintiff after defendant rested was not so much "rebuttal" as it was additional testimony. The general rule is that it is in the discretion of the trial judge whether to allow additional evidence by a party after that party has rested or whether to allow additional evidence after the close of the evidence. 12 Strong's N.C. Index 3d, Trial, § 14, page 375, Castle v. Yates Co., 18 N.C.App. 632, 197 S.E.2d 611 (1973). The exercise of the trial court's discretion in such cases will not be disturbed on appeal absent an abuse of that discretion. Maness v. Bullins, 33 N.C.App. 208, 234 S.E.2d 465 (1977), disc. rev. denied, 293 N.C. 160, 236 S.E.2d 704 (1977). We see no such abuse here, and this assignment is, therefore, overruled.

Plaintiff next assigns error to the inclusion of an instruction on G.S. 20-153(b)^[2] in the trial judge's charge to the jury. Plaintiff contends that the statute is inapplicable to this case. We disagree. The trial judge has the duty to instruct the jury on the legal issues raised by the evidence. G.S. 1A-1, Rule 51(a), Griffin v. Watkins, 269 N.C. 650, 153 S.E.2d 356 (1967), 12 Strong's N.C. Index 3d, Trial, § 32, page 421. The evidence presented by plaintiff and defendant conflicted with regard to the lane in which plaintiff was traveling when she attempted her left turn. Defendant's evidence tended to show that plaintiff was in the right-hand lane of North Heritage Street, next to the curb. Defendant's evidence raised the possibility that plaintiff violated G.S. 20-153(b), which required plaintiff to be in the most lefthand lane of the street. We find no merit in plaintiff's assertion that Ferris v. Whitaker, 123 F. Supp. 356 (E.D.N.C.1954) limits the application of G.S. 20-153(b) exclusively to cases involving a vehicle entering an intersection from the left of the intersecting road. Ferris involved an accident which occurred when plaintiff's car attempted to pass defendant's truck on the left, while defendant was turning left at an intersection. The court in Ferris simply stated that though the defendant truck driver "cut the corner" slightly, and indeed violated G.S. 20-153, this was not the proximate cause of the collision. The statute applies to protect the safety of all who may be affected by a vehicle turning left at an intersection. Since defendant's evidence supplied the factual basis for this instruction, there was no error in this part of the charge. See Griffin v. Watkins, supra.

Plaintiff also argues that reversible error occurred when the court instructed the jury on G.S. 20-153(b), and referred to a turn signal requirement. The portion of the charge to which plaintiff excepts is as follows:

"As to the second contention, the motor vehicle law provides that the driver of a vehicle intending to turn left at an intersection shall approach the intersection in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle, and after entering the intersection the left-hand turn signal shall be made so as to leave the intersection in a lane lawfully available to traffic moving in such direction upon the roadway being entered."

The trial judge inadvertently added the word "signal" to this portion of the charge. He later instructed the jury fully as to the relevant turn signal statute. We are unconvinced that this lapsus linguae confused the jury. Jury instructions are to be construed contextually, and there is no error if they were correct on the whole. State v. Watson, 294 N.C. 159, 240 S.E.2d 440 (1977), Gregory v. Lynch, 271 N.C. 198, 155 S.E.2d 488 (1967), Hanks v. Nationwide Mut. Fire Ins. Co., 47 N.C.App. 393, 267 S.E.2d 409 (1980). This assignment is overruled.

The final assignment which we address is whether the trial judge erred in explaining the turn signal statute to the jury. Plaintiff contends that the instructions could have misled the jury into thinking that failure to give a turn signal, in itself, constitutes contributory negligence per se. Plaintiff excepts to a portion of the charge which reads:

"[I]f the defendant has proved ... the plaintiff ... was negligent in any one or more of the following respects, ... by turning from a direct line before turning from a direct line (sic) failing to determine that the movement could be made in safety or failing to give a plain visible signal of her intention to turn."

The jury had previously been instructed that "[I]f the operation of another vehicle may be affected, he [the driver] must give a plainly visible signal.... Turning in violation of these duties is not negligence within itself...." Plaintiff admits that this portion of the instruction is correct. Viewing this instruction on the whole, we find no error, and overrule this assignment. See Griffin v. Watkins, supra.

No Error.

MORRIS, C. J., and CLARK, J., concur.

NOTES

[1] This case arose before October 1, 1981, the effective date of N.C.Sess.Laws Chap. 451 (H 149), which allows photographs to be used as substantive evidence.

[2] G.S. 20-153(b) Left Turns.—The driver of a vehicle intending to turn left at any intersection shall approach the intersection in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle, and, after entering the intersection, the left turn shall be made so as to leave the intersection in a lane lawfully available to traffic moving in such direction upon the roadway being entered. Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.