Anderson ex rel. Anderson v. Butler ( 1973 )

VAUGHN, Judge.

The record does not disclose that defendants stated the specific grounds for their motions for a directed verdict. It is clear, however, that the motions were made on the grounds that the evidence, in the light most favorable to the plaintiff,' as a matter of law was insufficient to justify a verdict for' plaintiffs. The motion thus raised substantially the same question as that formerly raised by a motion for involuntary non-' suit, Kelly v. Harvester Co., 278 N.C. 153, 179 S.E. 2d 396, and we will, in our discretion, review the denial thereof.

In consideration of defendants’ motions for a directed verdict we do not consider the testimony given by defendants, called as witnesses by plaintiffs, which tends to -exculpate defendants, even when that evidence favorable to defendants is not othérwise contradicted by plaintiffs. The credibility and weight to be given.such evidence are matters for jury consideration. Bowen v. Rental Co., 283 N.C. 395, 196 S.E. 2d 789.

We have set out the evidence in considerable detail. A majority of the panel is of the opinion that the evidence, when considered in the light of the familiar standards, is insufficient for submission to the jury. The dissent, of course, entitles plaintiffs to further review as a matter of right.

Our decision that it was error to deny defendants’ motions for a directed verdict makes it unnecessary to consider defendants other assignments of error. Suffice it to say that if the case had been one for the jury, the majority would hold that the defendants are entitled to a new trial for, among other reasons, the failure of the judge to tell the jury what acts or omissions, under the evidence, they might find to constitute negligence. A jury cannot be left free to find defendants generally negligent, “for any reason which the evidence might suggest to them.” Griffin v. Watkins, 269 N.C. 650, 153 S.E. 2d 356.

It was error not to allow defendants’ motions for a directed verdict. The judgment is reversed, and the cause is remanded' for proceedings not inconsistent with this opinion.

Reversed and remanded.

Judge Campbell concurs. Judge Baley dissents.