Robinette v. Wike

144 S.E.2d 594 (1965) 265 N.C. 551

Z. V. ROBINETTE
v.
Bobby G. WIKE.

No. 438.

Supreme Court of North Carolina.

November 3, 1965.

Corporal Hunt of the State Highway Patrol, called as a witness for the defendant, corroborated Patrolman Pope.

Adams & Dearman, by C. H. Dearman, Statesville, and Ray Jennings, Taylorsville, for plaintiff appellant.

Patrick, Harper & Dixon, Hickory, for defendant appellee.

PER CURIAM.

In passing upon the plaintiff's motion for judgment of nonsuit as to the defendant's counterclaim, all of the evidence, including that offered by the plaintiff, must be interpreted in the light most favorable to the defendant, since, as to the counterclaim, the defendant is in the position of a plaintiff seeking relief. So interpreted, the plaintiff's own testimony and his own statement to the investigating patrolmen are sufficient to support a finding that he reentered the highway from the private driveway without maintaining a proper lookout, when the automobile of the defendant was in plain view only a short distance away and that he drove at least a part of his truck over the center of the road and into the defendant's lane of travel. There is no material variance between this evidence and the allegations of the counterclaim as to where and how the collision occurred. G.S. § 1-168. The plaintiff can hardly contend that he was misled by his own testimony and statements. His motion for judgment of nonsuit was, therefore, properly denied.

The credibility of the testimony and the propriety of drawing therefrom inferences which it will support were for the jury, who have considered it and decided in favor of the defendant. There was no error in the denial of the motion to set aside the verdict.

Although the alleged errors in the instructions of the court to the jury appear to have been abandoned in the brief of the plaintiff, we have considered them and find no merit therein.

No error.