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Johnston v. Gallimore8/6/2002
UNPUBLISHED
A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).
Plaintiff brought this action seeking money damages for personal injury and property damage allegedly caused by the negligence of defendant Bobby Joe Gallimore in the operation of a motor vehicle owned by defendant Celia Eppley Gallimore. Defendants filed an answer denying their negligence and asserting plaintiff's contributory negligence as a defense. Briefly summarized, the evidence tended to show that on the morning of 16 February 1997, plaintiff was driving her vehicle in a westerly direction on Garner Bagnal Boulevard in Statesville and defendantBobby Joe Gallimore was driving his vehicle in an easterly direction on Garner Bagnal Boulevard. A collision occurred between the vehicles when Mr.Gallimore turned left onto Salisbury Road and his vehicle was struck by plaintiff's vehicle.
A jury returned a verdict in favor of plaintiff in the amount of $45,000. Judgment was entered upon the verdict. Defendants' motion for judgment notwithstanding the verdict or, in the alternative, a new trial was denied. Defendants appeal.
I.
Defendants first contend the trial court erred in allowing Douglas Delk, a witness for plaintiff, to testify regarding defendant Bobby Joe Gallimore's conduct prior to the collision. Mr. Delk testified that he encountered Mr. Gallimore at a Texaco station at approximately 10:30 or 11:00 a.m. on 16 February 1997. Mr. Delk testified Mr. Gallimore had become upset when he tried to purchase beer and was not permitted to do so; Mr. Delk testified that Mr. Gallimore was "at the counter raising cane, cursing, and carrying on." According to Mr. Delk, when Mr. Gallimore left the convenience store, he was spinning tires and cutting around the parking lot.
Defendants failed to object to all of Mr. Delk's testimony which they now assign as error. Defendants objected only to Mr. Delk's testimony that Mr. Gallimore was "at the counter raising cane, cursing, and carrying on." Thus, defendants have failed to properly preserve for appellate review Mr. Delk's additionaltestimony. See N.C.R. App. P. 10(b)(1). In our discretion, we will review defendants' arguments with respect to all of Mr. Delk's testimony to which defendants have assigned error. See N.C.R. App. P. 2.
Defendants assert that testimony regarding Mr. Gallimore's actions prior to the accident is irrelevant to the issue of whether he was negligent at the time of the collision. In addition, they contend that even if the testimony was relevant, the probative value of such evidence was substantially outweighed by the danger of unfair prejudice.
For evidence to be admissible, it must be relevant, i.e., it must have a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2001). However, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . ." N.C. Gen. Stat. § 8C-1, Rule 403 (2001). Whether to exclude evidence under Rule 403 is a determination within the sound discretion of the trial court. Matthews v. James, 88 N.C. App. 32, 362 S.E.2d 594 (1987), disc. review denied, 322 N.C. 112, 367 S.E.2d 913 (1988).
We conclude
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