Volume 283 — North Carolina Reports

1. Constitutional Law 32 — requirement that State furnish counsel — indigency as prerequisite The requirement that the State furnish counsel to each defendant charged with a criminal offense beyond the class of petty misdemeanor is conditioned upon a showing of indigency and inability to procure counsel for that reason. <block_quote> 2. Constitutional Law 32 — defendant not indigent — waiver of counsel — sufficiency of oral waiver Where the evidence tended to show that, at the time of his arrest and confession, defendant had jobs which paid him $650 per month, that his wife's income was $480 per month, that he owned two automobiles and that he owned a stereo, a color television set and other household furnishings, defendant was not an indigent but was in a position to waive counsel, could do so orally, and did in fact make such waiver.</block_quote> <block_quote> 3. Criminal Law 86 — testimony of interested witness — admissibility In a first degree murder prosecution testimony by a witness that she and defendant "was going with each other" and that she knew defendant was married was admissible together with testimony that defendant had asked the witness questions with respect to the victim's habit of cashing checks since the attitude of the witness and her interest in the case had bearing on the weight to be given the testimony by the jury.</block_quote>

1. Criminal Law 90 — rule that party may not impeach his own witness The solicitor is precluded from discrediting a State's witness by evidence that his general character is bad or that the witness has made prior statements inconsistent with or contradictory of his testimony; however, the trial judge has the discretion to permit the solicitor to cross-examine either a hostile or an unwilling witness for the purpose of refreshing his recollection and enabling him to testify correctly, but the trial judge offends the rule that a witness may not be impeached by the party calling him and so commits error if he allows a party to cross-examine his own witness solely for the purpose of proving him to be unworthy of belief. 2. Criminal Law 90, 102 — State's witness — impeachment by solicitor — improper questioning The solicitor's questioning of a State's witness with reference to a statement given by her to officers at the time of the homicide, but repudiated by her before trial violated the rule of law which forbids a prosecuting attorney to place before the jury by argument, insinuating questions, or other means, incompetent and prejudicial matters not legally admissible in evidence. 3. Criminal Law 90 — rule that party may not impeach his own witness — inadmissibility of prior inconsistent statements The rule that the State could not impeach its own witness by showing that she had made prior statements contradictory of her<page_number>Page 219</page_number> testimony at the trial made a statement given by her to officers immediately after the homicide in question incompetent as evidence; therefore, it was improper for the solicitor to ask the witness questions which clearly suggested the existence and text of such prior inconsistent statements. 4. Criminal Law 90 — rule that party may not impeach his own witness — questions with respect to prior inconsistent statement — prejudicial error Where a State's witness repudiated before trial a statement made by her to officers immediately after the homicide in question, the trial judge erred in allowing the solicitor to cross-examine the witness before the jury with respect to the existence and contents of the statement, and such prejudicial error required that the verdict and judgment be vacated and a new trial be ordered.

1. Appeal and Error 28 — broadside exception to findings and judgment — review of record proper Broadside exception to the findings of fact, conclusions of law and judgment does not bring up for review the findings of fact or the evidence on which they are based but presents only the record proper for review upon the question of whether error of law appears on the face of the record. 2. Appeal and Error 40 — parts of record proper The pleadings, issues and judgment are necessary parts of the record proper. 3. Insurance 103 — garage liability policy — forwarding suit papers to insurer — validity of policy requirement Provision of a garage policy requiring the insured to forward immediately to the insurer any demand, notice, summons or other process received by him or his representative is a valid stipulation, and unless the insured or his judgment creditor can show compliance with the requirement, the insurer is relieved of liability.<page_number>Page 235</page_number> 4. Insurance 103 — garage liability policy — failure to forward suit papers to insurer — waiver Failure to give notice or immediately forward summons or other process received by the insured may be waived by the insured's denial of liability on other grounds, but the insurer must have notice that a claim of loss is being asserted against it in order to waive such requirement by denial of liability. 5. Insurance 103 — garage liability policy — denial of coverage to uninsured defendant — amendment of complaint — no waiver of failure to notify insurer of suit Where insurer issued a garage liability policy to Thomas Mills and Ralph Mills, d/b/a Mills Motor Company, plaintiff instituted an action against Thomas Mills, t/a Mills Grocery, the suit papers were turned over to the insurer, the insurer employed counsel to defend the suit but such counsel was allowed to withdraw because the insurer had issued no policy to the named defendant, and plaintiff subsequently amended the caption of her complaint to name "Thomas Mills and Ralph Mills, t/a Mills Motor Company" as additional defendants but the insurer received no notice that the complaint had been amended to include the named insureds as defendants, it was held that the insurer did not waive the condition of the policy that all summonses and other suit papers be forwarded to it when it denied coverage of the defendant Thomas Mill, t/a Mills Grocery, and that the insurer was not liable under the policy for a judgment by default and inquiry obtained against Thomas Mills, d/b/a Mills Motor Company, since it received no notice of a suit against such insured.

Homicide 31 — no evidence to support manslaughter — verdict of manslaughter — error in submission of lesser included offense favorable to defendant The fact that defendant had incurred a large indebtedness to deceased and deceased desired to collect immediately, the number and seriousness of deceased's wounds, the transportation of the body to a distant lake and weighting it down with log chains, and the effort to conceal the fact that defendant did not make his planned business trip to Delaware with the deceased, disclosed a higher degree of homicide than manslaughter; however, the verdict finding the defendant guilty of manslaughter and the judgment thereon may be sustained on the basis of the rule that, if the court charges on a lesser included offense when all the evidence tends to support a greater offense, the error is favorable to the defendant and he is without standing to challenge the verdict.

1. Criminal Law 9; Assault and Battery 14 — aiders and abettors — sufficiency of evidence In a prosecution charging defendant with aiding and abetting in assault with a firearm with intent to kill and aiding and abetting in the discharge of a firearm into an occupied vehicle, evidence was sufficient to withstand motion for nonsuit where it tended to show that defendant was present when the crime was committed, operated flashing lights on his automobile and blinked his headlights from bright to dim numerous times while driving close behind the victim's automobile, thus causing that automobile to stop on the side of the road, pulled alongside the victim's automobile so that the gunman's window was flush with the driver's seat, moved slowly along after the first shot was fired while the gunman fired five additional shots into the victim's automobile, left the scene of the crime, attempted to escape recognition, pursued the victim's automobile at high rates of speed, denied to police officers that he had been at the scene of the crime and later admitted being present. 2. Criminal Law 9 — aider and abettor — acquittal of principal It is not necessary that the person who actually perpetrated a crime be tried and convicted before the one who aided and abetted in the crime can be tried and convicted, but there must be proof that the offense has in fact been committed. 3. Criminal Law 9; Indictment and Warrant 9 — aider and abettor — acquittal of principal — sufficiency of indictment against defendant Where indictments charged that an unknown person discharged a firearm into an occupied vehicle and committed an assault with a firearm with intent to kill and that defendant was present, aiding and abetting in the deed, acquittal of one Johnny Smith as the actual perpetrator did not constitute a sufficient basis for dismissal of the charges against defendant. 4. Criminal Law 172 — failure to submit lesser offense — acquittal — error cured Jury verdict of not guilty of aiding and abetting in assault with a firearm with intent to kill was tantamount to a verdict of not guilty of all lesser included offenses; therefore, the jury verdict rendered nonprejudicial the failure of the trial judge to submit the lesser included offense of aiding and abetting in an assault with a deadly weapon. 5. Criminal Law 9; Indictment and Warrant 9 — defendant as aider and abettor — sufficiency of indictments An indictment must charge every essential element of the crime but it need not set forth the specific facts or means by which an accused aided and abetted in the commission of a crime; therefore,<page_number>Page 262</page_number> the trial court in a case charging defendant with aiding and abetting in an assault with a firearm with intent to kill and with aiding and abetting in the discharge of a firearm into an occupied vehicle properly refused to quash the indictments against defendant, particularly since the allegations of the indictments stated facts showing that defendant was present as the driver of the vehicle from which the shots were fired. 6. Criminal Law 112, 119 — requested instruction — incorrect statement of law — refusal to instruct proper Defendant's requested instruction that "Circumstantial evidence which raises mere suspicion or conjecture of guilt is insufficient for connection" was not a correct statement of the law as to the intensity of proof required when the State relies upon circumstantial evidence, and the trial court therefore properly refused to give the instruction. 7. Criminal Law 119 — requested instructions given in substance — no error There was no prejudicial error in the trial court's refusal to give instructions as to aiders and abettors in the exact words of defendant's tendered request where the charge actually given was substantially in accord with defendant's request. 8. Constitutional Law 34; Criminal Law 26 — two charges based on one offense — acquittal on one charge — no double jeopardy In a prosecution charging defendant with aiding and abetting in an assault with a firearm with intent to kill and aiding and abetting in the discharge of a firearm into an occupied vehicle where defendant was acquitted of the assault charge, he was neither convicted nor punished twice for the same offense and did not suffer infringement of his constitutional guaranty against double jeopardy by the imposition of multiple punishment, even if he was twice tried for the same offense at the same time. 9. Criminal Law 142 — suspended sentence upon conditions — consent of defendant — effect of appeal on judgment Where the judgment of the trial court contained a recital that the actual sentence was suspended with defendant's consent upon the condition that he surrender his license to practice law to the N.C. State Bar and there is no indication in the record that defendant excepted to the judgment or withdrew his consent, the question of whether defendant's appeal stayed the order of disbarment by the trial court is not presented on appeal.

1. Eminent Domain 15 — condemnation proceeding — right to possession — passage of title In a condemnation proceeding under G.S. 40-11 et seq., the condemnor acquires no right to possession until it pays into court the value of the subject property as determined by appraisers; it acquires no title to the property until it obtains a final judgment and pays to the landowner the amount of compensation fixed by such judgment. 2. Eminent Domain 15 — condemnation proceeding — right to possession — growing crops on land Absent unusual circumstances, the landowner may continue to use his property from the commencement of a condemnation proceeding under G.S. 40-11 et seq. until the payment into court by the condemnor of the value of the property as determined by commissioners to the same extent and in the same manner in which he had<page_number>Page 317</page_number> been using it prior to the commencement of the condemnation proceeding; consequently, if the owners of land subject to such a proceeding had planted crops on the land in the years prior to commencement of the proceeding, they had a right to plant, cultivate and harvest crops on such land until their right to possession was terminated by the condemnor's payment into court of the amount of value of the property as determined by commissioners. 3. Water and Watercourses 1 — obstruction of surface stream — flooding of upper lands — liability for damages If a lower landowner obstructs a surface stream of water so as to prevent the water from flowing as it naturally would and thereby flood the lands above him, he incurs liability for the damage caused by such flooding; since the respective rights of the upper and lower proprietors are property rights, the invasion thereof, not negligence, affords the basis for recovery. 4. Eminent Domain 13; Water and Watercourses 1 — obstruction of surface stream — trespass — right to condemn — inverse condemnation Ordinarily, the invasion of a property right of the upper proprietor by the lower proprietor would constitute a trespass which would entitle the aggrieved party to damages or injunctive relief or both; however, if a property right of the upper proprietor is invaded by a party that has authority to condemn this property right, such invasion constitutes a "taking" of the landowner's property and the action becomes in effect an action for "inverse condemnation." 5. Water and Watercourses 4 — flooding caused by dam construction — damage to crops — sufficiency of evidence for jury Defendants' evidence was sufficient for the jury in their crossaction for damages to their crops from flooding allegedly caused by plaintiff municipality's construction of a dam on a creek where it tended to show that the municipality had installed a pipe having a diameter of five feet which provided the only means for flow of the creek waters through the dam under construction, that the creek twice overflowed during heavy rains while the dam was under construction and flooded defendants' 40-acre tract above the dam, that crops on the 40 acres were completely under water for two to three weeks on each occasion and were totally destroyed, and that when the 40 acres were flooded on two occasions prior to construction of the dam the water subsided within a few hours and caused no material damage to crops. 6. Pleadings 2; Rules of Civil Procedure 50 — motion for directed verdict — erroneous label of ground for relief If defendants are entitled to relief under their allegations and evidence, plaintiff is not entitled to a directed verdict because defendants erroneously named "negligence" rather than "trespass" or "inverse condemnation" as the ground on which they are entitled to recover.

1. Robbery 1 — common law robbery — violence or putting in fear — proof of either necessary Common law robbery is the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear, and proof of either violence or putting in fear is sufficient. 2. Robbery 4 — common law robbery — force used — sufficiency of evidence Where the evidence tended to show that defendant snatched the victim's purse with such force that the strap of the purse was broken, the victim was thrown to the ground and her arm was dislocated, the trial court properly submitted the issue of guilt of common law robbery to the jury. 3. Robbery 5 — common law robbery — failure to submit lesser included offenses — no error The trial court in a common law robbery case properly failed to submit to the jury lesser included offenses of the crime charged where there was no evidence of such offenses.

1. Sales 6; Uniform Commercial Code 15 — implied warranty of fitness — Pennsylvania law In Pennsylvania the implied warranty of fitness for a particular purpose, Pa. Stat. Ann. tit. 12A, 2-315 (1970), not only protects a buyer who purchases goods with the intention of using them in a "particular" manner, meaning a manner in which they would not normally be expected to be used, but also protects a buyer when his particular purpose is the general or ordinary purpose; consequently, the warranty of fitness applied to trailers purchased for the general or ordinary purpose of hauling cargo. 2. Sales 6; Uniform Commercial Code 15 — implied warranty of fitness — implied warranty of merchantability — Pennsylvania law Under Pennsylvania law both the implied warranty of merchantability and the implied warranty of fitness would exist where the seller is a merchant with respect to goods of that kind, the buyer is buying the goods for the ordinary purpose, and the requirements of Pa. Stat. Ann. tit. 12A, 2-316 (1970) are met.<page_number>Page 424</page_number> 3. Sales 6; Uniform Commercial Code 15 — disclaimer of warranties previously created — Pennsylvania law Under Pennsylvania law a disclaimer in a purchase money security agreement could not as a matter of law disclaim the implied warranties previously created in the written sales arrangement. Pa. Stat. Ann. tit. 12A, 9-206 (2) (1970). 4. Sales 18; Uniform Commercial Code 20 — warranty of fitness — exclusion by course of dealing or performance — insufficiency of evidence In an action to recover damages for breach of an implied warranty of fitness of trailers purchased from defendant, the evidence did not require submission of an issue to the jury as to whether implied warranties had been excluded "by course of dealing or course of performance" within the purview of Pa. Stat. Ann. tit. 12A, 2-316 (3) (c) (1970). 5. Sales 19; Uniform Commercial Code 20 — breach of warranty — buyer retains goods — measure of damages — Pennsylvania law Under Pennsylvania law the measure of damages for breach of warranty, when the buyer retains the goods and sues for the loss of bargain occasioned by the failure of the goods to conform to the warranty, is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted. Pa. Stat. Ann. tit. 12A, 2-714 (2) (1970). 6. Courts 21 — contract made in another state — admission of evidence — what law governs Questions of the admission and exclusion of evidence are generally considered procedural and governed by the lex fori. 7. Evidence 19 — value of personal property — value at another time Where the value of personal property at a given point in time is in issue, evidence of its value within a reasonable time before or after such point is competent as bearing upon its value at the time in issue, but evidence of the property's value beyond a reasonable time before or after that point lacks probative value and is incompetent. 8. Sales 14; Uniform Commercial Code 20 — breach of warranty — cost of repairs While the cost of repairs may be competent as tending to show the difference between the value of goods as warranted and as delivered, such evidence must be confined to a point in time reasonably proximate to the date of delivery. 9. Sales 14; Uniform Commercial Code 20 — breach of warranty of fitness — evidence of value at time after acceptance — evidence of cost of repairs — prejudicial error In this action to recover damages for breach of the implied warranty of fitness of trailers purchased from defendant, the trial court committed prejudicial error in the admission of opinion testimony of the value of the trailers more than two and a half and more than five years after the time of acceptance and in the admission of<page_number>Page 425</page_number> testimony as to what it would cost to repair the trailers at an unspecified time more than two years after the acceptance, and defendant is entitled to a new trial on the issue of damages. 10. Sales 19; Uniform Commercial Code 20 — breach of warranty — damages — effect of repairs by seller In an action for breach of an implied warranty of trailers which is governed by Pennsylvania law, the measure of damages established by Pennsylvania statute should be reduced by the amount, if any, by which repairs made by the seller enhanced the value of the trailers. 11. Sales 14 — breach of warranty — new trial on damages issue — new trial on breach of warranty issue In an action for breach of warranty of fitness of 150 trailers, a new trial on the issue of damages also requires a new trial on the issue as to breach of warranty because the jury that assesses the damages should be the same jury that determines whether and to what extent the fitness warranty was breached. 12. Sales 17; Uniform Commercial Code 21 — breach of warranty — entire order It is not necessary that each and every commercial unit in an order of goods manufactured under the same specifications be shown to have become totally unusable before recovery may be had for breach of warranty with respect to the entire order. 13. Sales 17; Uniform Commercial Code 20 — breach of warranty — entire order of trailers — sufficiency of evidence Plaintiff's evidence was sufficient to go to the jury on the issue of breach of warranty of fitness with respect to all 150 trailers purchased from defendant, although 141 trailers are still in service, where it tended to show that the 150 trailers constituted one order and were manufactured under the same specifications, one trailer collapsed eight days after it was put in service while carrying a normal load under normal conditions and another collapsed five months later, defendant thereafter reinforced the top rails of the trailers with an additional rail 20 feet long, two years later seven more trailers collapsed within a short period of time by breaking in two at the end of such 20-foot section, and the trailers were thereafter used as much as possible to haul light-type freight. 14. Courts 21; Sales 19; Uniform Commercial Code 20 — breach of warranty — pre-judgment interest — what law governs Where an action for breach of warranty was governed by the substantive law of Pennsylvania, the place where the parties contracted, the question of pre-judgment interest was governed by Pennsylvania law. 15. Interest 1 — breach of contract actions — recovery of interest — Pennsylvania law Under Pennsylvania law interest is recoverable as a matter of right in actions for breach of contract only in cases falling within the provisions of Restatement of Contracts 337 (a), which provides for the recovery of interest as a matter of right only where<page_number>Page 426</page_number> nonperformance, not defective performance, constitutes the breach of contract sued on. 16. Interest 1; Sales 19 — breach of warranty — Pennsylvania law — damages for delay in compensation Under Pennsylvania law the jury in an action for breach of warranty has the discretion to award "damages for delay in compensation" in the amount of six percent per annum on any damages awarded for breach of warranty, calculated from the date of the breach to the date of the judgment on the verdict.

1. Counties 2 — power to adopt ordinances regulating waste disposal A county has no inherent power to adopt ordinances relating to the collection and disposal of garbage and other waste material, having only those legislative powers which the General Assembly has seen fit to confer upon it. 2. Statutes 5 — statutory construction Unless the contrary appears, it is presumed that the Legislature intended the words of a statute to be given the ordinary meaning which they had in ordinary speech at the time the statute was enacted and that no word of any statute is a mere redundant expression. 3. Counties 2 — authority to grant franchise to collect garbage — statutes The grant of powers to boards of county commissioners by G.S. 153-10.1 is, by virtue of G.S. 153-275, supplementary to the grant made by G.S. 153-272 and the two statutes must be construed together. 4. Counties 2 — franchise to collect garbage — definition of garbage The trial court did not err in limiting the definition of "garbage" as used in G.S. 153-272, the statute authorizing counties to grant<page_number>Page 495</page_number> exclusive franchises for the collection and disposal of "garbage," to "all putrescible solid wastes, including vegetable matter, animal offal and carcasses of small animals (100 pounds or less), but excluding human body wastes, animal manure, and recognizable industrial by-products," and the court properly concluded that county commissioners have no authority to grant an exclusive franchise to collect and dispose of wastes not falling within such definition of "garbage." G.S. 153-10.1; G.S. 130-166.16; G.S. <cross_reference>160A-192</cross_reference>.

1. Criminal Law 120, 135, 138 — imposition of punishment — role of judge and jury The rule that the presiding judge fixes the punishment for a convicted defendant within the limits provided by the applicable statute and therefore the amount of punishment which a verdict of guilty will empower the judge to impose is totally irrelevant to the issue of a defendant's guilt and of no concern to the jurors is now applicable in all cases without exception, including capital cases because juries in this State no longer have the discretionary power to reduce the penalty in capital cases from death to life imprisonment. 2. Criminal Law 87 — leading questions allowed — no error The trial court did not abuse its discretion in allowing the solicitor to ask leading questions where the four questions involved did not necessarily suggest the answer desired although all of them could have been answered yes or no. 3. Homicide 28 — failure to instruct on self-defense — no error Defendant was not entitled to an instruction on self-defense where his evidence tended to show that he approached the unarmed deceased with a shotgun, deceased lunged at him and defendant "throwed the gun up . . . and it shot"; nor did the State's evidence require such an instruction where it tended to show that defendant walked up to the deceased, said "Say what you said before," then raised the gun and shot him before deceased could say anything else. 4. Constitutional Law 35; Criminal Law 135 — first degree murder — mandatory death penalty not applicable The mandatory death penalty for murder in the first degree, rape, burglary in the first degree and arson may not be constitutionally applied to any offense committed prior to 18 January 1973, the date State v. Waddell was handed down; therefore, since the murder for which defendant was convicted occurred on 24 February 1972, the mandatory death penalty cannot be applied and the case is remanded for imposition of sentence of life imprisonment.<page_number>Page 505</page_number>

1. Criminal Law 46 — flight of defendant — sufficiency of evidence to support instructions Trial court's instruction with respect to the flight of defendant was supported by the evidence where it tended to show that numerous attempts were made by an officer to locate defendant but four months elapsed after commission of the offense before defendant was apprehended. 2. Criminal Law 118 — misstatement of contention — no prejudice The trial judge may have overstated the State's contentions with respect to the flight of defendant by saying that defendant left the county and town where the alleged offense took place; however, error in stating where defendant fled was not material and that slight inaccuracy in the statement of contentions is not reversible error since the misstatement was not called to the court's attention in apt time to allow correction.<page_number>Page 521</page_number> 3. Criminal Law 88, 169 — cross-examination as to collateral matter — instruction to disregard testimony — no error The general rule that answers made by a witness to collateral questions on cross-examination are conclusive does not preclude the examiner from pressing or sifting the witness by further cross-examination; therefore, there was no error in the cross-examination of defendant in a first degree burglary case with respect to his involvement as defendant in a nonsupport case, particularly where there were no objections to the questions asked or motions to strike the answers given and where the trial court subsequently explained the solicitor's reasons for the cross-examination and unequivocally withdrew the testimony from the jury's consideration. 4. Burglary and Unlawful Breakings 5 — first degree burglary — sufficiency of evidence In a first degree burglary case, testimony of a witness, standing alone, was sufficient to carry the case to the jury where that testimony tended to show that defendant entered the witness's apartment and started hitting her, pushed her on the bed and verbally indicated his intention to have intercourse with her; the witness fled from the apartment while defendant was removing his trousers; defendant overtook the witness and continued the assault until a neighbor yelled at him, whereupon defendant fled; and the witness had previously known defendant and recognized him when he passed the lighted bathroom.

1. Appeal and Error 45 — assignments of error abandoned Assignments of error not brought forward in defendants' brief are deemed abandoned. Rule 28, Rules of Practice in the Supreme Court. 2. Automobiles 46; Trial 15 — opinion evidence as to speed of vehicle — objection too late In an action to recover for personal injuries and property damage sustained by plaintiff in a collision between his motorcycle and and automobile, the trial court properly refused to strike plaintiff's testimony that defendant's car "was approaching very fast" where plaintiff had ample opportunity to observe the speed of the vehicle and where defendant did not make any objection until after the question, "Will you describe the movement of the car?" had been answered. 3. Automobiles 45 — automobile collision case — evidence as to posted speed limit In an automobile collision case the trial court did not err in excluding testimony of defendant designed to rebut plaintiff's<page_number>Page 605</page_number> testimony that the posted speed limit in the area where the collision occurred was 20 m.p.h. 4. Damages 15 — personal injury in automobile collision — subsequent back strain — evidence of causal relation required Evidence of back strain suffered by plaintiff while engaged in calisthenics as part of his army training could not properly be considered by the jury in determining the amount of damages to be awarded for an injury which occurred two years earlier in an automobile collision in the absence of expert medical testimony or other competent and substantial evidence as to a causal relation between the two; nevertheless, it was not error to permit the plaintiff first to testify as to the pain he experienced and thereafter to introduce evidence as to its causal relation to the injury for which he sued. 5. Automobiles 45 — automobile collision case — evidence of defendant's solicitude for injured plaintiff Defendant is not entitled to a new trial in an automobile collision case where the court struck part of defendant's answer to a question designed to show his solicitude for the injured plaintiff at the scene of the collision. 6. Damages 3, 16 — damages for future pain — instruction unsupported by evidence Where there was no evidence whatever that the plaintiff, as of the time of the trial, would suffer any pain or disability in the future, and none affording any reasonable basis for a finding of a causal connection between the injury for which he sued and any pain or disability which he might experience after trial, it was error to instruct the jury that they might award damages for pain or disability likely to occur in the future. 7. Appeal and Error 62 — erroneous instruction on damages — partial new trial awarded Since the only error in the trial court related to the jury charge on the measure of damages recoverable by the plaintiff and had no bearing upon the jury's determination of the negligence of defendant as the proximate cause of plaintiff's injury, the Supreme Court, in its discretion, awards a partial new trial limited solely to the issue of damages.

1. Automobiles 51 — striking turning vehicle — sufficiency of evidence of negligence In an action by an automobile passenger to recover for injuries sustained in a collision between the automobile and a truck, the evidence was sufficient to be submitted to the jury on the issue of negligence by the automobile driver where it tended to show that the accident occurred while the truck was attempting to make a left turn across the automobile's lane of travel on a four-lane highway, the automobile driver was familiar with the road at the scene of the collision, the speed limit was 45 mph, the automobile driver rounded a blind curve prior to the point of collision in excess of 60 mph, upon rounding the curve he could have seen the truck giving a left turn signal and slowly moving across the center line 300 feet in front of him, and when he applied his brakes his tires smoked and left heavy skid marks on the surface of the road 93 feet before the impact. 2. Rules of Civil Procedure 50 — judgment n.o.v. — consideration of evidence In passing on a motion for judgment n.o.v., the court must view the evidence in the light most favorable to the non-movant. 3. Rules of Civil Procedure 50 — error in allowing motion for judgment n.o.v. The motion for judgment n.o.v. is that judgment be entered in accordance with the movant's earlier motion for a directed verdict; consequently, where the trial court properly denied defendants' motion for directed verdict, it was error for the court thereafter to allow defendants' motion for judgment n.o.v. 4. Trial 42 — finding of contributory negligence — award of damages — surplusage Where the jury found that plaintiff was injured and damaged by the negligence of defendant's agent and that the agent by his own negligence contributed to his own injuries, neither defendant nor his agent is entitled to recover damages from the codefendant, and<page_number>Page 641</page_number> answers of the jury awarding such damages are surplusage and must be stricken and disregarded in rendering judgment.

1. Rules of Civil Procedure 50 — motion for directed verdict — review by court on appeal The question for a reviewing court on an appeal from a judgment on a directed verdict in favor of the defendant is whether the evidence in the record, considered in the light most favorable to the plaintiffs and giving them the benefit of every reasonable inference therefrom, would have been sufficient to support a verdict in their favor. 2. Negligence 59; Trespass 7 — automobile striking house — showing of wrongful act or negligence necessary for recovery of damages — Evidence that the defendant drove an automobile off the public highway and across private property so that it struck a building is not sufficient to entitle the innocent owner of the building to recover damages; rather, there must be proof of some wrongful act or neglect of the defendant which was the proximate cause of the injury. 3. Negligence 59; Trespass 1 — trespasser — licensee — definitions A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise, while a licensee is a person who is privileged to enter or remain on land only by virtue of the possessor's consent. 4. Trespass 6 — acts of landowner — local customs — relevancy on issue of consent Consent to enter land in the possession of another may be implied, and acts of the possessor as well as customs in the community should be considered in determining whether there has been consent to enter.<page_number>Page 657</page_number> 5. Trespass 7 — construction of driveway — implied consent to enter The construction of a driveway or walkway leading to the entrance of a residence may, in the absence of notice to the contrary, be reasonably construed, not only by acquaintances of the landowner but also by strangers, as an expression of the landowner's consent to their entry thereon for the purpose of approaching and entering the house on any lawful mission. 6. Trespass 7 — entry into driveway by taxicab — no trespass — taxi striking house during assault by passenger — directed verdict for taxi driver proper Where the evidence tended to show that defendant cabdriver entered plaintiff's driveway either to discharge his passenger or to turn around, the passenger assaulted defendant and, in the process of defending himself, defendant allowed his vehicle to roll into plaintiff's house causing damage, the trial court properly directed verdict for defendant in plaintiff's action to recover for damage to the house since the evidence was insufficient to show a trespass upon plaintiff's property by defendant.

1. Carriers 19 — common carrier — liability for injury to passenger While a common carrier is not an insurer of its passengers and is liable only for negligence proximately causing injury to them, such carrier owes to the passengers whom it undertakes to transport the highest degree of care for their safety so far as is consistent with the practical operations and conduct of its business. 2. Carriers 19 — common carrier — nondelegable duty to passengers The high degree of care which a carrier operating under a public franchise owes to its passengers is a nondelegable duty. 3. Carriers 19 — passenger carrier — inspection of equipment A common carrier of passengers has the duty to provide adequate conveyances with sufficiently strong and serviceable equipment for the safe transportation of its passengers, to inspect such conveyances and equipment at proper intervals and to keep them in good repair. 4. Carriers 19 — passenger carrier — duty to inspect equipment — purchase from reputable source — lease from another carrier The purchase of equipment from a reputable source does not relieve the carrier of the further duty to inspect and test the equipment; nor may a carrier relieve itself of the duty to exercise the highest degree of care to provide safe buses by leasing its transportation facilities from another carrier or corporation which has contracted to furnish and keep such equipment in proper condition. 5. Carriers 19 — lease of bus — pre-existing defect — liability for injury to passenger If a bus leased to a common carrier contained a pre-existing defect which could or should have been discovered by proper inspection, and if the defect was the proximate cause or a proximate cause of injuries to passengers on the bus, the common carrier would be liable for such injuries. 6. Carriers 19 — bus running off highway — negligence by bus company — prima facie case Plaintiff bus passengers made out a prima facie case of actionable negligence against defendant carrier by the introduction of evidence tending to show that they were injured when the bus in which they were passengers, without a prior collision or other apparent cause, ran off the highway into a ditch and struck a culvert.<page_number>Page 735</page_number> 7. Appeal and Error 42 — omission of charge from record — presumptions Where the judge's charge is not in the record, it is presumed that he submitted the case to the jury upon every theory which the evidence justified and instructed correctly on every principle of law applicable to the facts. 8. Evidence 49 — expert opinion testimony as to causation When a jury's inquiry relates to cause and effect in a field where special knowledge is required to answer the question, the purpose of expert testimony is likely to be thwarted or perverted unless the expert witness is allowed to express a positive opinion as to causation rather than being confined to testimony as to whether a particular event or condition "could" or "might" have produced the result in question. 9. Carriers 19 — bus running off road — defect in steering mechanism — sufficiency of evidence In an action to recover for injuries received by plaintiff bus passengers when the bus ran off the highway into a ditch and struck a culvert, the evidence was sufficient to support a finding that a defective steering mechanism caused the bus to leave the highway where there was evidence tending to show that as the bus approached the curve in which it left the road and after it left the road the wheels would not respond when the driver turned the steering wheel, and where there was expert testimony that the nuts on two bolts connecting the flanges in the steering mechanism were stripped and, in consequence, the bolts became loose and moved back and forth, that this movement finally severed the cotter pin at the end of each bolt, breaking the connection between the power steering cylinder and the steering arm, and that there would be no steering power available to the wheel upon the separation of the flanges. 10. Bailment 5; Carriers 19 — bailor of bus used by common carrier — duty of inspection — liability to carrier and third person The owner of a nine-year-old bus leased to a common carrier had the duty to have it inspected carefully by a qualified mechanic before it was delivered to the carrier- this duty was imposed by law as well as by contract with the carrier and its breach would render the owner liable not only to the carrier but also to a third person injured thereby. 11. Carriers 19; Evidence 54 — expert opinion that defects would be visible to competent mechanic — admissibility In this action to recover for injuries to passengers on a bus leased by defendant common carrier from the defendant owner, the trial court committed prejudicial error in the exclusion of testimony by defendant carrier's expert mechanic that, based upon his personal examination of the steering mechanism of the bus, it was his opinion that the conditions which he found and described (and upon which he based his conclusion that a defect in the steering mechanism caused the accident in question) would have been visible to a competent mechanic prior to the time the bus was delivered to defendant carrier on the day of the accident, that the condition must have existed during two or three<page_number>Page 736</page_number> thousand miles of operation before it could have caused the steering to fail, and that the condition would have been visible to a trained mechanic by the looseness between the two flanges of the steering cylinder and the steering rod and by the cracking of the dirt, dust and road accumulation in the joint. 12. Bailment 6; Carriers 19 — injuries to passengers on leased bus — liability of bus owner to carrier In an action to recover or personal injuries received by passengers on a bus leased by defendant common carrier from the defendant owner when the bus ran off the highway and struck a culvert, the owner would not be liable to the carrier in any amount if the jury should find that the bus left the highway solely because of negligence by the carrier's driver or that the bus left the highway because of a defect in the steering mechanism which could not have been discovered by the owner in the exercise of proper care prior to delivery of the bus to the carrier. 13. Bailment 6; Carriers 19; Negligence 11 — injury to bus passengers — leased bus — pre-existing defect — indemnity of carrier by owner In an action to recover for personal injuries received by passenger on a bus leased by defendant common carrier from defendant owner, the common carrier would be entitled to recover indemnity from the owner if the jury should find that the accident was caused by a pre-existing defect in the steering mechanism which a competent mechanic could and should have discovered by a proper inspection of the bus prior to its delivery to the common carrier, since the negligence of the owner was primary and that of the common carrier in failing to provide a safe bus for its passengers was secondary. 14. Bailment 6; Carriers 19; Torts 2 — injuries to bus passengers — leased bus — contribution by owner to carrier In an action to recover for injuries received by passengers on a bus leased by defendant common carrier from defendant owner, the common carrier would be entitled to contribution from the owner if the jury should find that the owner was guilty of actionable negligence in furnishing the carrier with a defective bus, that the carrier's driver was negligent in the manner in which he operated the bus, and that the negligence of both concurred in proximately causing the accident in which plaintiffs were injured. G.S. <cross_reference>1B-1</cross_reference>; G.S. <cross_reference>1B-3</cross_reference>.