50 S.E.2d 909 | N.C. | 1948
Civil action to recover for damage to, and for loss of use of bus allegedly resulting from actionable negligence of defendant.
Defendants, answering, deny any negligence on their part, and plead sole negligence and contributory negligence of plaintiff.
Upon the trial in Superior Court these three issues were submitted to the jury:
"1. Was the plaintiff's property damaged through the negligence of the defendants, as alleged?
"2. Did the plaintiff by its own negligence contribute to its damages as alleged in the answer?
"3. What amount, if any, is the plaintiff entitled to recover of the defendant?"
The jury answered the first issue "Yes," and the second issue "Yes," but, in accordance with the instructions of the court, having so answered the first and second issues, did not answer the third issue.
From judgment for defendant and against plaintiff, on verdict so rendered, plaintiff appeals to Supreme Court, and assigns error. Plaintiff, appellant, brings forward ten assignments of error, in none of which is prejudicial error made to appear. However we treat themseriatim:
Assignments of error Nos. 1, 2 and 4, based on exceptions of same numbers, are directed to the ruling of the court in sustaining objection by defendants to certain questions asked by counsel for plaintiff relating to cost of operation of buses of plaintiff. The record does not show what the answer of the witness would have been if permitted to answer. Competency *652
of the testimony is not, therefore, presented by the assignments of error.Barbee v. Davis,
Assignment of error No. 3 is founded on exception No. 3, taken to the action of the court in overruling objection by defendant to question asked by plaintiff pertaining to knowledge of the witness as to the cost of operation of the particular bus of plaintiff involved in this action. This ruling is in plaintiff's favor. Hence the exception is without merit.
Assignment of error No. 5, covering exception No. 5, to the action of the court in overruling objection by plaintiff to the introduction of photographs, defendants' exhibits 1 and 2. Plaintiff states in its brief that these photographs were taken after material changes had been made at the scene of accident and did not represent the condition of the road and land surrounding the highway. However, the only evidence we find in the record as to photographs comes, first, on cross-examination of the driver of plaintiff's bus, who testified: "This picture looks pretty near like the surroundings there just before I got to the telephone pole and ran into it. That's what I call a shoulder," and, second, on direct examination of Addison, defendant and witness for defendants, who testified: (indicating) "I say that picture is a fair representation of the conditions of the road, the entrance to Lee's Diner, the Diner itself and the land surrounding the highway at the time of the wreck. It is all except this little building right here. There is no difference in the land or the highway or the driveway." Following this statement of Addison, the photographs were offered. The court instructed the jury in effect that the photographs are not substantive evidence and are offered and received only for the purpose of illustrating the testimony of the witness, if the jury find that they do illustrate, and for no other purpose. This ruling is in keeping with decision in S. v. Gardner,
Assignments of error Nos. 6 and 7 are based upon exceptions of like numbers, to portions of the charge in which the court was stating contentions of defendant. If there were matter in the statement, not supported by the evidence, it does not appear that plaintiff objected and called that fact to the attention of the court at the time the statements were made. A failure to do so constitutes, ordinarily, a waiver of objection to the statement. McMahan v. Spruce Co.,
Furthermore, as to the 7th assignment of error, this relates to a statement of contention of defendant as to awarding damages. If there were error in the statement of such contention, and it had been called to the attention of the court, and not corrected, it would be harmless for that it relates to the third issue which was not reached for answer by the jury.
Assignments of error Nos. 8 and 9, covering exception No. 8, are to the action of the court in overruling plaintiff's motion "to set aside the verdict as being contrary to the law and evidence, and for a new trial," and exception No. 9, to the signing of the judgment. In this connection, the statute G.S. 1-207, formerly C.S. 591, provides that the judge who tries the cause may, in his discretion, entertain a motion, to be made on his minutes, to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages. "This is not the same question as in motion of nonsuit, or to direct a verdict, where the judge must allow the case to go to the jury if there is sufficient evidence to be considered by them, that is, more than a scintilla, or to give rise to a mere conjecture; but he may be of opinion that, after considering the evidence, the jury came to a wrong conclusion and for that reason set aside the verdict. Since it is a matter of discretion, there is no definite rule to control its exercise," McIntosh N.C. P. P., p. 674, Section 610 (4). Indeed, a motion to set aside a verdict as not in conformity with the evidence is addressed to the discretion of the trial judge, when the evidence is conflicting, as in the present case, and will not be considered on appeal. Hoke v. Whisnant,
Lastly, assignment of error No. 10, relating to no exception, is as stated in brief of plaintiff, directed against "the action of the court in submitting the issue of contributory negligence to the jury, when there was no evidence to support said issue." In this connection the record fails to show that plaintiff objected and excepted to the submission of the issue of contributory negligence; nor does it show that plaintiff moved for a directed verdict on that issue. If plaintiff desired to test the legal sufficiency of the evidence offered by defendants to support their defense of contributory negligence, the burden of proof of which was on them, it should have moved, in apt time, for a directed verdict on the issue of contributory negligence. And having failed to do so, plaintiff may not, in case on appeal to Supreme Court, effect a valid exception upon which to challenge the legal sufficiency of the evidence to justify the submission of the issue. *654
At any rate there is no contention that the answer of defendants fails to properly plead the defense of contributory negligence. A reading of the answer reveals the sufficiency of the averments in this respect. And a perusal of the testimony offered by defendants, as shown in the record on this appeal, indicates an abundance of evidence to justify, and to support the verdict as rendered by the jury.
For these reasons, the assignments of error are not sustained, and in the judgment below we find.
No error.
