Coppley v. Carter , 10 N.C. App. 512 ( 1971 )

179 S.E.2d 118 (1971) 10 N.C. App. 512

Robert L. COPPLEY, Administrator of G. F. Coppley, Deceased
v.
Miles Millard CARTER, Jr.

No. 7122SC161.

Court of Appeals of North Carolina.

February 24, 1971.

Stoner, Stoner & Bowers, by Bob Bowers, Lexington, for plaintiff appellant.

Walser, Brinkley, Walser & McGirt, by Charles H. McGirt, Lexington, for defendant appellee.

CAMPBELL, Judge.

Plaintiff's first assignment of error is directed to the denial of his motion to strike the testimony of the defendant regarding the reasonableness of the defendant's speed at the time he was attempting to pass, for that it was not responsive. This assignment of error is without merit as the record shows that the testimony was elicited by the plaintiff during cross examination and came as a result of argument with the witness by the plaintiff and hence the unresponsiveness. Moreover, there is no showing of prejudice as the jury answered the issue of defendant's negligence in favor of the plaintiff.

Plaintiff next assigns as error the failure of the trial judge to grant plaintiff's motion for judgment non obstante veredicto or in the alternative a new trial. Upon a motion for judgment non obstante veredicto under G.S. § 1A-1, Rule 50(b) (1), the sufficiency of the evidence upon which the jury based its verdict is drawn into question. All of the evidence which supports defendant's claim must be taken as true and considered in the light most favorable to defendant, giving him the benefit of every reasonable inference which may legitimately be drawn therefrom, and with contradictions, conflicts and inconsistencies being resolved in defendant's favor. Horton v. Iowa Mutual Insurance Co., 9 N.C.App. 140, 175 S.E.2d 725 (1970), Musgrave v. Mutual Savings & Loan Assoc., 8 N.C.App. 385, 174 S.E.2d 820 (1970).

Here, the evidence was sufficient to carry the case to the jury. Defendant's testimony to the effect that the approximate distance from the intersection of Rural Paved Road No. 1551 to the scene of the collision was 75 to 100 feet is not an "indisputable physical fact" that will negate defendant's other testimony that he did not begin passing until after he passed the intersection. This testimony is not sufficient to justify taking the case from the jury. It was only an estimation on the part of the defendant and insofar as it creates a conflict in his testimony, it must be resolved in his favor in passing on a motion for a directed verdict or a motion for judgment notwithstanding the verdict.

The denial of the motion in the alternative for a new trial lies within the discretion of the trial judge. An action of the trial judge as to a matter within his judicial discretion will not be disturbed unless a clear abuse of discretion is shown. Whaley v. Rhodes, 10 N.C.App. 109, 177 S.E.2d 735 (Filed 16 December 1970). No abuse of discretion has been shown and the denial of the motion for a new trial must be upheld.

Plaintiff's remaining assignments of error relate to alleged omissions in the charge. We have reviewed the charge and find it to be adequate and free of prejudicial error.

The evidence was conflicting and the trial court properly submitted the conflict to the triers of fact who found against the plaintiff.

For the reasons stated, the judgment of the trial court is

Affirmed.

BRITT and HEDRICK, JJ., concur.