#### JAMES A. PARRISH v. DAVID C. BRYANT and GIBSONVILLE DEVELOPMENT COMPANY, a Corporation, t/a ROCK CREEK DAIRY.

(Filed 25 February, 1953.)

1. Evidence § 29—

Where plaintiff fails to show the identity of the issues in his case with those of a former criminal prosecution against the same defendant, transcript of the testimony in the criminal proceeding is properly excluded, the question of the identity of the issues being a preliminary question to be decided by the court before any evidence at a former trial is competent.

2. Automobiles §§ 8d, 18i — Evidence held not to invoice proviso of G.S. 20-161.

Plaintiff was sitting in his vehicle, which defendants’ evidence tended to show was parked some eighteen inches on the hard surface on its -right side of the highway. Defendant driver, while traveling in the opposite direction, turned to his left and struck the parked vehicle in an attempt to avoid hitting a pedestrian who darted across, the highway from back of plaintiff’s car. The issue of contributory negligence was submitted to the jury on defendants’ contention that plaintiff’s car was parked on the highway in violation of G.S. 20-161. *Held:*Upon evidence tending to show that at least twenty-four feet of the hard surface was unobstructed to the left of plaintiff’s car and that a clear view of plaintiff’s ear was obtainable for more than two hundred feet, the court was not required to charge upon the proviso of G.S. 20-161, and failure to charge on the proviso could not have been hurtful to plaintiff.

3. Same—

Where defendants’ evidence tends to show that plaintiff’s vehicle was standing partly on the hard surface, and plaintiff’s own evidence tends to show that it was “parked,” plaintiff may not object to the failure of the court to charge on the distinction between parking and a momentary stop, there being no evidence raising the question upon the theory of trial.

4. Appeal and Error § 8—

An appeal will be determined in accordance with the theory of trial in the lower court.

Parker, J., having presided in the court below, took no part in the consideration or decision of this case.

Appeal by plaintiff from *Parker, J.,*and a jury, March Term, 1952, of AlamaNce.

No error.

Civil action to recover damages for personal injuries resulting from a collision of two motor vehicles.

The collision occurred at about 2:00 o’clock in the afternoon of 22 February, 1949. The defendant David C. Bryant was driving a milk truck of the corporate defendant in an easterly direction on U. S. Highway No. 70 near Burlington, North Carolina. At that time the plaintiff was driving a Studebaker automobile on the same highway in the oppo*257site direction; but before meeting tbe defendant Bryant, the plaintiff parked the Studebaker on his right hand side of the highway, at a point just west of a much traveled intersection. The plaintiff then got out of the Studebaker and climbed into the back seat. His companion, a man named Shepherd, got out of the Studebaker on the right side and moved back toward its rear end. The hard-surfaced portion of the highway at that point was about 26 feet wide, slightly down hill, but straight for some considerable distance each way. When the truck driven by the defendant Bryant was about 200 yards away, he saw the Studebaker parked on his left side of the highway, facing him. When the truck was within some 20 or 30 feet of the Studebaker, a man suddenly darted from behind it across the highway toward the path of the truck. Bryant, in an effort to avoid hitting the man, swerved his truck to the left, across the center line of the highway to near the edge of the pavement, and ran into the Studebaker, injuring the plaintiff, who was seated therein:

The defendants offered evidence tending to show that the Studebaker was parked from 18 inches to 2 feet on the paved, main-traveled portion of the highway; whereas, the plaintiff’s evidence indicates that the ear was parked several feet off the pavement in a driveway.

The case was tried upon issues of negligence and contributory negligence, both of which were answered by the jury in the affirmative. The issue of contributory negligence was grounded on the theory that the plaintiff in parking his car on the main-traveled portion of the highway in violation of G.S. 20-161 thereby proximately contributed to his own injury.

From judgment entered on the verdict, denying the plaintiff recovery, he appeals, assigning errors which relate (1) to the exclusion of evidence and (2) to the charge of the court.

*H. Clay Hemric and Long <& Long for plaintiff, appellant,*

*Sanders*<£• *Holt and Cooper ■& Cooper for defendants, appellees.*

JohhsoN, J.

The plaintiff stresses his exception to the refusal of the court to permit him to offer in evidence a transcript of the sworn testimony of S. T. Mullen, a State Highway patrolman, as given in the trial of the criminal ease of State *v.*David C. Bryant in the Burlington Municipal Recorder’s Court on 20 December, 1950. This testimony was taken at the trial of the criminal case by a court reporter, and in the instant trial below it was stipulated by the defendants that the transcript of the evidence was authentic and correct, and that if the court reporter were present she would so identify the transcript. Also, it had previously been testified by Lt. C. L. Willard, of the State Highway Patrol, that witness Mullen was no longer with the Highway Patrol, but at the time *258of the trial was in Atlanta, Georgia. It was further shown that one of the defendants in the present case was the identical defendant in the previous criminal case, and that the other defendant in the present case was the employer of the individual defendant, and further that in the trial of the criminal case the witness Mullen was cross-examined on behalf of the defendant Bryant by his attorney, who represents both defendants in the present case. The plaintiff, on the basis of these circumstances, insists that the transcript of Mullen’s former testimony should have been received in evidence.

This evidence was properly excluded. It is subject to challenge on a number of grounds, one of which is failure to show identity of issues.

One of the cardinal rules governing the admissibility of testimony given at a former trial is that it must be made to appear that the issues in the former action were substantially the same as in the pending action, the theory being that unless the issues were the same, the cross-examination would not have been directed to the same material points of investigation, and necessarily could not have been an adequate test for exposing testimonial inaccuracies. Wigmore on Evidence, Third Ed., Vol. 5, Sections 1386 and 1387; 31 C.J.S., Evidence, Sec. 385. See also *Bank v. Motor Co.,*216 N.C. 432, 5 S.E. 2d 318; *McLean v. Scheiber,*212 N.C. 544, 193 S.E. 708; Stansbury, North Carolina Law of Evidence, Sec. 145; 20 Am. Jur., Evidence, Sec. 694; Annotation: 46 A.L.R. 463; Wigmore on Evidence, Third Ed., Vol. 5, Sec. 1404; *Smith v. Moore,*149 N.C. 185, 62 S.E. 892; *Cf. Settee v. R. R.,*171 N.C. 440, 88 S.E. 734; *Dupree v. Va. Home Ins. Co.,*92 N.C. 417.

This question of identity of issues is a preliminary one to be decided by the court from the record of the former trial. 20 Am. Jur., Evidence, Sec. 691.

The record here reflects no such preliminary determination. The question whether as against the defendant Bryant, who is presently charged with the negligent violation of several highway safety statutes, the issues in the criminal case were the same as in the present civil action, rests entirely in conjecture. Whereas, it is noted that one of the crucial issues involved in the present civil action is the issue of contributory negligence, based on allegations that the plaintiff violated G.S. 20-161 by parking on the main-traveled portion of the highway. Certainly, this question was not directly in issue in the former criminal action against Bryant.

For this failure to show identity of issues, the proffered evidence was properly excluded.

Next, the plaintiff assigns as error the charge of the court in reference to G.S. 20-161, which prohibits the parking of an automobile “upon a pavement or improved or main-traveled portion of any highway outside *259of a business or residential district when it is practicable to park ... off . . . the pavement. . . .”

Here the plaintiff insists that the court erred in failing to charge the jury in reference to the proviso contained in the statute which provides in effect that in no event shall a vehicle be left unattended on the main-traveled portion of a highway unless a clear width of at least 15 feet be left open for travel opposite the vehicle, nor unless a clear view of the vehicle may be obtained from a distance of 200 feet in both directions.

As to this contention, it is enough to say that no phase of the evidence brought into operation the provisions of the proviso of this statute; and the case was not tried on that theory. All the evidence tends to show that the highway at the place of collision was 26 feet wide and a clear view at that point was obtainable from the west for more than 200 feet. The testimony to the effect that the Studebaker car was parked on the pavement placed it thereon for distances varying from 18 inches to 2 feet, thus leaving at least 24 feet of the main-traveled portion of the highway open for the passage of other vehicles. Besides, if it should be conceded that the proviso was applicable, on this record it is not perceived how a failure to charge thereon would have been hurtful to the plaintiff. .The omission, it would seem, would have been helpful to him. ■ At any rate, the exception is without merit. It is overruled.

We come now to the exceptive assignments of error based on the failure of the trial court to point out and explain to the jury the difference .between a momentary stop and the “parking and leaving standing” of a vehicle.

Here, again, the plaintiff’s contention runs contrary to the theory of the trial. The record discloses that the case was tried wholly on the theory of whether the Studebaker car was parked on or off the main-traveled portion of the highway. The plaintiff alleged and contended that his car was entirely off the pavement and in a driveway leading to a service station; whereas, the defendants contended the car- was left on the pavement. The record reflects nothing tending to show that the plaintiff claimed exemption from the statute (G.S. 20-161) under the doctrine of momentary stoppage, as explained by *Barnhill, J.,*in *Peoples v. Fulk,*220 N.C. 635, 18 S.E. 2d 147.

To the contrary, the record discloses that the plaintiff .several times in his pleadings refers to his car as having been parked; and his witnesses made numerous similar references.

The theory upon which a ease is tried in the lower court must prevail in considering the appeal and interpreting the record and determining the validity of the exceptions. *Thrift Corp. v. Guthrie,*227 N.C. 431, 42 S.E. 2d 601; *Hinson v. Shugart,*224 N.C. 207, 29 S.E. 2d 694. As stated by *Brogden, J.,*in *Weil v. Herring,*207 N.C. 6, p. 10, 175 S.E. *260836, “. . . the law does not permit parties to swap horses between courts in order to get a better mount in the Supreme Court.”

The rest of plaintiff’s exceptive assignments have been examined. They are without merit. Error has not been made to appear. The verdict and judgment will be upheld.

No error.

Paekee, J., having presided in the court below, took no part in the consideration or decision of this case.