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Oliver C. BUSCHOW, Appellant, v. Theodoric Bland SMITH, Jr., Appellee.

No. 13424.

United States Court of Appeals Fourth Circuit.

Argued Jan. 7, 1970.

Decided Feb. 4, 1970.

John V. Hunter, III, Raleigh, N. C., for appellant.

William K. Davis, Winston-Salem, N. C. (Edwin T. Pullen, and Deal, Hutchins & Minor, Winston-Salem, on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and SOBELOFP and CRAVEN, Circuit Judges.

PER CURIAM:

In this automobile negligence case the district judge, without objection or exception, combined within the first issue (1) the question of actionable negligence and (2) the question whether plaintiff's injuries were attributable to the collision or to an upset immediately prior, but unrelated, to the collision. Thus, in the context of the instructions to the jury it was impossible to determine whether the jury’s negative answer to the first issue1 *meant the absence of actionable negligence, or meant that the injuries were attributable solely to the prior upset rather than the collision, or meant both.

During the trial the district judge refused to permit a medical doctor to answer a very long hypothetical question within the hearing of the jury. The question was competent, but quite difficult to follow, and if received, the answer would have tended to support plaintiff’s contention that his injuries were caused by the collision and not the prior upset. Because of the combination of questions in the first issue, the exclusion of this testimony became important when the jury ended the case by answering the first issue “No.”

The validity of the trial is saved by the harmless error rule. A shorter form of substantially the same question had been propounded and allowed to be answered. This answer was not ordered stricken by the court and sufficiently expressed all the doctor was attempting to say: that the collision rather than the prior upset could have caused the plaintiff's injuries.

Affirmed.

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