264 N.C. 362 | N.C. | 1965
G.S. 1-224 provides: “In actions where a verdict passes against the plaintiff, judgment shall be entered against him.”
“(A) verdict ‘passes/ when it has been accepted by the trial judge for record ... A verdict is accepted by the judge when he has inspected it and finds, or should as a matter of law find, that it is determinative of the issues involved.” Insurance Co. v. Walton, 256 N.C. 345, 349, 123 S.E. 2d 780, 784. (Italics ours.)
It has long been settled by the decisions of this Court that, in actions such as this, when the jury finds that the plaintiff was injured by the negligence of the defendant and that the plaintiff by his own negligence contributed to his injury, and then assesses damages, the plaintiff is not entitled to recover. On the contrary, the defendant is entitled to judgment on the verdict, for such a verdict is not essentially inconsistent. Brown v. Bass, 261 N.C. 739, 136 S.E. 2d 36; Bullard v. Ross, 205 N.C. 495, 171 S.E. 789; Allen v. Yarborough, 201 N.C. 568, 160 S.E. 833; Sasser v. Lumber Co., 165 N.C. 242, 81 S.E. 320.
When the jury first returned its verdict, Judge Crissman could, in his discretion, have set it aside. He could .not, however, legally have refused to accept it. His rejection of the verdict was error which invalidated all subsequent proceedings. The disposition of this case is controlled by Edwards v. Motor Co., 235 N.C. 269, 69 S.E. 2d 550. We follow the course it chartered:
“The verdict will be treated as having been received, and the cause will be remanded for further proceedings, with the parties being relegated to their rights as of the coming in of the verdict to the extent (1) that the plaintiff may move the court to set aside the verdict in the exercise of its discretion, and (2) that the defendants may move for judgment on the verdict. Ordinarily, a motion to set aside a verdict in the discretion of the court must be made and decided at the trial term. Fowler v. Murdock, 172 N.C. 349, 90 S.E. 301; McIntosh, N. C. Practice and Procedure, p. 671. How*364 ever, this rule is subject to exception where, as here, an erroneous ruling of the trial court deprives a litigant of the opportunity to invoke this inherent discretionary power of the court.” Id. at 272, 69 S.E. 2d at 553.
Error and remanded.
