Wilkins v. Turlington

145 S.E.2d 892 (1966) 266 N.C. 328

Emmett D. WILKINS
v.
George E. TURLINGTON and Panzie C. Turlington.

No. 616.

Supreme Court of North Carolina.

January 14, 1966.

Braswell & Strickland, Goldsboro, for plaintiff appellant.

Smith, Leach, Anderson & Dorsett, C. K. Brown, Jr., Raleigh, and D. K. Stewart, Dunn, for defendant appellees.

BOBBITT, Justice.

In considering the sufficiency of the evidence to withstand plaintiff's motions for judgments of nonsuit as to defendants' counterclaims, the evidence must be considered in the light most favorable to defendants. Evidence favorable to plaintiff must be disregarded. Gillikin v. Mason, 256 N.C. 533, 124 S.E.2d 541; Robinette v. Wike, 265 N.C. 551, 144 S.E.2d 594.

Mrs. Turlington's testimony tends to show: She had been following the three vehicles for several miles. When she undertook to pass, she had reached a place where she had a clear view of the left lane for approximately half a mile. There was no oncoming traffic, no yellow lines and no intersection or turnoff. The three vehicles in front of her had been and were proceeding in the right lane. She was watching these vehicles and observed no signals from any of them. She blew her horn and started around the Benson truck. After pulling into the left lane, she got near the Ford and blew her horn again. She was "right back of" plaintiff's truck when it made its left turn across her line of travel.

While plaintiff's evidence was in sharp conflict, in our opinion, and we so hold, the foregoing testimony of Mrs. Turlington was sufficient to require submission of an issue as to plaintiff's alleged actionable negligence and did not disclose that Mrs. Turlington was contributorily negligent as a matter of law. Hence, the assignment of error directed to the court's refusal to nonsuit defendants' counterclaims is without merit.

Plaintiff assigns as error the portion of the charge in which the court read to the jury the provisions of G.S. § 20-141 (c). Plaintiff alleged defendants were negligent, inter alia, in respect of speed. The applicable maximum speed limit was 55 miles per hour. There was no evidence the speed of the Turlington car exceeded 55 miles per hour. Hence, the reading of G.S. § 20-141(c) was favorable to plaintiff since it called attention to the fact that a speed of 55 miles per hour or less might be considered greater than was reasonable and prudent under the conditions disclosed by the evidence.

Plaintiff assigns as error, based upon an exception to a portion of the charge, the failure of the court to submit, with reference to the counterclaims, an issue as to defendants' contributory negligence. The record indicates no objection to the issues submitted by the court prior to the service of plaintiff's case on appeal. Moreover, the jury answered the first issue, "No," and thereby established that the collision and resulting injury and damage were not proximately caused by the negligence of defendants.

Plaintiff assigns as error a portion of the charge in which the court stated in substance that plaintiff contended defendants' negligence in respect of speed and failure to keep a proper lookout proximately caused plaintiff's injury and damage and that the jury should answer the first issue, "Yes." Plaintiff contends this instruction is erroneous because the court made no reference to the duty of the driver of an overtaking vehicle to give warning before attempting to pass a vehicle proceeding in the same direction. In this connection, it is noted that plaintiff did not allege, as a specification of defendants' negligence, the failure of defendants to give warning before attempting to pass. Too, the court, in the excerpt to which plaintiff's exception relates, was stating contentions of plaintiff. Nothing indicates plaintiff then excepted to such statement of his contentions. Moreover, "(a)n exception to an excerpt from the charge does not ordinarily challenge the omission of the court to charge further on the same or any other aspect of the case." 1 Strong, N.C.Index, Appeal and Error § 24, p. 101.

Plaintiff asserts, based on numerous exceptions, that the court erred "in repeatedly interrupting the introduction of evidence, asking questions, and commenting in the presence of the jury and making statements in the presence of the jury, thereby constituting an expression of opinion to the prejudice of the plaintiff and thereby tending to interrupt the introduction of evidence in an ordinary fashion to the prejudice of the plaintiff." It appears that plaintiff, in preparing his case on appeal, entered exceptions to practically all words spoken by the court during the progress of the trial, including colloquies with counsel relating to the competency of evidence and questions asked to ascertain what a witness had said or to get a better understanding of the witness' intended meaning. After careful consideration of each of these exceptions, the conclusion reached is that the statements, comments and questions to which exceptions were noted do not, separately or collectively, disclose error prejudicial to plaintiff.

Assignments of error based on exceptions to rulings on evidence have been carefully considered. Suffice to say, none discloses prejudicial error or merits detailed discussion.

Plaintiff's motion to set aside the verdict as contrary to the greater weight of the evidence was for determination by the trial judge in the exercise of his discretion. Nothing appears indicative of an abuse of discretion.

While the evidence would have supported a verdict in plaintiff's favor, the jury, upon conflicting evidence, resolved the issues in favor of defendants; and plaintiff's assignments of error do not show prejudicial error entitling him to a new trial.

No error.