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Gay v. Walter

Filed: November 3, 1981.

JOSEPH DANIEL GAY AND MARILYNN F. GAY
v.
REESE B. WALTER



Appeal by plaintiff from Llewellyn, Judge. Judgment entered 18 September 1980 in Superior Court, Lenoir County. Heard in the Court of Appeals 14 September 1981.

Wells, Judge. Chief Judge Morris and Judge Clark concur.

Wells

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*fn1 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)*fn2 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 left-hand 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, ...


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