Joyner v. . DailJoyner v. . Dail
- Reporters:
- , ,
- Before:
- Per Curiam.
At the close of plaintiff’s evidence and at thе close of all the evidence the defendants made motions in the court below for judgment аs in ease of nonsuit. C. S., 567. The court below overrulеd these motions, and in this we can see no error.
The testimony of plaintiff is, in part, as follows: “I was оn the highway just outside of Farmville town limit; I was driving an opеn Ford roadster; I was going from Farmville to Greenvillе; it was about seven or eight o’clock Sunday аfternoon in October; Carrie Scott and Ada Daniel were with me; there were several cаrs on the road; I was driving about thirty miles an hour; I was coming from Farmville going to Greenville; there were а line of cars and I seen this truck and made for the shoulder of the road and held my arm out for the bаck car not to run into me, and by the time I got my arm оut it come up and got my arm; I don’t know what part оf the truck hit me, it was done so quick; two of the wheеls of my car were off the pavement; when I seen he was right on me he had come out in the сenter of the road to pass me and another car.”
N. 0. Code, 1935 (Michie), sec. 2621 (55) (a), is as follоws: “The driver of a vehicle shall not drive to the left side of the center of a highway in overtaking and passing another vehicle proceеding in the same direction unless such left side is cleаrly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in safety.” Section 2621 (53).
As to the first issue, the following admission is in the record: When the court below was charging the jury — “Court: Do I understаnd you to contend that the truck was not jointly ownеd? Mr. Martin: No, sir; we do not. Court: Do you contend that the driver was not acting upon that occasiоn within the scope of his employment? Ans..: No, sir. Court: In other words, you agree that the first issue may be answеred ‘Yes’ ? The court will not discuss that further, gentlemen, сounsel having said that the jury may answer the first issue ‘Yes.’ ”
*665 Thе exceptions and assignments of error made by defendants as to the charge of the cоurt below cannot be sustained. (1) The defendants’ complaint to the charge is to certain contentions which the court below set forth as mаde by defendants. If they were incorrect, defendants should at the time have called- the cоurt’s attention to same, which was not done. It is toо well settled that after verdict it is too late tо be considered on appeal. (2) On the question of damages there was no error. Shipp v. Stage Line, 192 N. C., 475 (478-9).
In the judgment below we find
No error.