9 N.C. App. 36 | N.C. Ct. App. | 1970
The appellant assigns as error the action of the trial court in striking- testimony of Mrs. Hoffman and the supplementary testimony of Mr. Hoffman relating to damages which resulted from a decline in profits from their oil business following the collision with the defendant. They further argue that the court, in its charge to the jury, erroneously expressed an opinion in violation of G.S. 1A-1, Rule 51, Rules of Civil Procedure, when the court instructed the jury that damages could not be awarded for loss of profits from the oil business and that they would not consider the testimony of Mr. and Mrs. Hoffman concerning this loss. This assignment of error is not sustained for the record clearly reveals that the testimony stricken and the instruction complained of related solely to the issue of damages which was not reached and considered by the jury.
The appellant contends that the court below erred in that it failed to instruct the jury as to the legal meaning of negligence, and particularly that the court failed to explain to the jury that the violation of a safety statute would be negligence. The court, in defining negligence, among other things, stated that negligence is the doing of a thing which a reasonably prudent person, under similar circumstances, would not do, or the failure to do something that a reasonably prudent person would do under the same or similar circumstances, and that the test is what a reasonably prudent person would or would not do under the same or similar circumstances. Moreover, the court did in fact charge the jury that the violation of a statute which has been enacted for the public safety in the State of North Carolina by the General Assembly is negligence per se. This assignment of error is overruled.
The appellant contends that the court committed error in its charge to the jury by failing to declare and explain the law arising on the evidence as to all substantial features of the case. G.S. 1A-1, Rule 51, Rules of Civil Procedure, provides that the judge “. . . shall declare and explain the law arising on the evidence given in the case.” This rule further provides that the judge does not have to state the evidence except to the extent necessary to explain the application of the law thereto. When the charge in the present case is considered as a whole it
Finally, the appellant contends that the court committed error in denying his motion to set the verdict aside as being contrary to the greater weight of the evidence. No abuse of discretion on the part of the judge is apparent in the present case; therefore, the action of the judge is not reviewable on appeal. Goldston v. Chambers, 272 N.C. 58, 157 S.E. 2d 676 (1967).
After a careful consideration of the assignments of error brought forward on this appeal by the plaintiff, it is our opinion that no prejudicial error was committed in the trial below.
No error.
