Wall Ex Rel. Wall v. Timberlake

158 S.E.2d 780 (1968) 272 N.C. 731

Rand Algernon WALL, and Rand Algernon Wall, Jr., by his Next Friend, Rand Algernon Wall,
v.
Edward Lee TIMBERLAKE.

No. 768.

Supreme Court of North Carolina.

February 2, 1968.

Bryant, Lipton, Bryant & Battle, by, Alfred S. Bryant, Durham, for defendant appellant.

Watkins & Jarvis, by, Jerry L. Jarvis, Durham, for plaintiff appellees.

HIGGINS, Justice:

The trial in the District Court was without a jury. Judge Moore heard the evidence, found and recorded the pertinent facts upon the basis of which he answered issues in favor of the plaintiffs, fixed the amount of damages resulting from the defendant's negligence and entered judgment in favor of the plaintiffs. The defendant appealed to the Superior Court, assigning as error: (1) The finding of negligence on the part of the defendant, and (2) The failure to find the plaintiff was contributorily negligent.

Judge Carr reviewed the record and properly determined the evidence before the District Court was sufficient to support the findings and the judgment. The resolution of the conflicts in the evidence was the function of the District Court. The appellate courts approve when the evidence is sufficient to warrant the findings and when error of law does not appear on the face of the record. MacKay v. McIntosh, 270 N.C. 69, 153 S.E.2d 800; Jenkins v. Castelloe, 208 N.C. 406, 181 S.E. 266.

The judgment entered in the Superior Court is

Affirmed.