Morgan v. Carolina Coach Co.

Stacy, C. J.

Tbe case was here at tbe Fall Term, 1945, on demurrer to tbe complaint. 225 N. C., 668 , 36 S. E. (2d), 263 . It is here now on plaintiff’s appeal from an adverse verdict. It will be noted at once that tbe case as made by tbe evidence differs widely from tbe one alleged in tbe complaint.

Tbe jury was justified in exculpating tbe defendant, Carolina Coacb Company, from liability under what was said in Peoples v. Fulk, 220 N. C., 635 , 18 S. E. (2d), 147 ;

Leary v. Bus Corp., 220 N. C., 745 , 18 S. E. (2d), 426 , and White v. Chappell, 219 N. C., 652 , 14 S. E. (2d), 843 .

Tbe defendant G. E. Gibbs, offered four witnesses who, without objection, testified to his good character in tbe community where be lives, and in tbe court’s charge, reference was made to this evidence as follows: “Character evidence is substantive evidence; that is, it is basic evidence; not only substantive evidence but it also bears on bis credibility as a witness,” etc. This, of course, was erroneous as tbe case is one in tort based on alleged negligence. Tbe issues are civil, rather tban criminal, in character, and tbe evidence was competent only as affecting tbe defendant’s credibility as a witness.

Lumber Co. v. Atkinson, 162 N. C., 298 , *282 78 S. E., 212 . The trial court seems to have overlooked this difference, for the moment. Nevertheless, it had the effect of casting the substantive weight of such evidence into the scales against the plaintiff, and may have been the determinative factor im the case. It was sufficient to affect the atmosphere and tone of the trial, a circumstance which commands the attention of every experienced practitioner.

The defendant, on the other hand, says that in all events, the error should be regarded as harmless since plaintiff’s intestate was guilty of contributory negligence as a matter of law.

We are unable to agree with this contention in the light of what was said in the recent case of Sparhs v. Willis, ante, 25, and cases there cited, especially Smith v. Miller, 209 N. C., 170 , 86 S. E., 1036 . Hence, the result:

No Error as to the defendant, Carolina Coach Co.

New Trial as to the defendant, G. E. Gibbs.