Herring v. Scott

21 N.C. App. 78 | N.C. Ct. App. | 1974

CAMPBELL, Judge.

The defendant assigns as error the failure of the trial court to grant a mistrial rather than just striking the speed testimony of the plaintiff’s brother. Any error of the trial court was cured by the striking of the evidence and by the judge’s instruction that the jury should disregard that testimony. Wands v. Cauble, 270 N.C. 311, 154 S.E. 2d 425 (1967) ; Smith v. Perdue, 258 N.C. 686, 129 S.E. 2d 293 (1963). See also Stansbury’s North Carolina Evidence (Brandis Revision, 1973) § 28.

The defendant also assigns as error the failure of the trial court to strike the testimony of Mrs. Pittman as incompetent because she had insufficient opportunity to observe the car and to accurately estimate its speed. We hold that in this case that issue is really one of what weight should be given Mrs. Pittman’s testimony and that that question is for the jury. Jones v. Bagwell, 207 N.C. 378, 177 S.E. 170 (1934) ; Ray v. Electric Membership Corporation, 252 N.C. 380, 113 S.E. 2d 806 (1960); Harrison v. Lewis, 15 N.C. App. 26, 189 S.E. 2d 662 (1972).

The defendant also assigns as error the submission by the trial court of the issue of last clear chance to the jury in any case where contributory negligence has not been admitted by the plaintiff. However, on similar facts it has been held no error to submit the issue of last clear chance to the jury. Harrison v. Lewis, supra; Wanner v. Alsup, 265 N.C. 308, 144 S.E. 2d 18 (1965). We would note that the jury did not even reach the issue of last clear chance and that the question defendant raises is largely academic.

Lastly, the defendant assigns as error the failure of the trial court to grant his motion for directed verdict. Even if no consideration be given to plaintiff’s evidence as to excessive speed, the evidence was ample to allow the jury to infer that defendant failed to keep a proper lookout. Taken in the light most favorable to the plaintiff with all contradictions, conflicts and inconsistencies resolved in plaintiff’s favor, the evidence was sufficient to withstand a motion for directed verdict.

We have considered defendant’s other assignments of error and find them without merit. We find

No error.

Judges Hedrick and Baley concur.