Williams v. Nationwide Insurance Co.

PARKER, Judge.

Appellant contends that the trial court erred when it permitted defendant to amend its answer after plaintiff had introduced her evidence. In its original answer defendant had alleged contributory negligence on the part of plaintiff’s intestate, and at the first trial the jury had returned verdict finding him to have been contributorily negligent. Thus, plaintiff was already amply on notice that contributory negligence was one of the defenses upon which defendant relied. The amendments merely alleged additional acts of contributory negligence and were consistent with the facts disclosed by evidence introduced by plaintiff at the second trial. Under G.S. 1A-1, Rule 15(a), a party may amend his pleading at any time by leave of court, “and leave shall be freely given when justice so requires.” In this case there was no error in allowing the amendments.

Appellant contends that there was error in submitting to the jury an issue as to contributory negligence on the part of her intestate. In this connection appellant argues that while Williams may have known that Singletary was engaged in jacking up the car, there was no evidence that Williams knew that the lugs had been removed from the wheel, and so long as the wheel remained securely fastened, Williams could not have been crushed even if the jack slipped. However, the evidence is plenary that Williams knew, or should have known, that Singletary was engaged in changing the tire and that removal of the lugs is a normal step in that process. It was for the jury to determine whether the fact that he remained under the car under such circumstances constituted negligence on his part which was a proximate cause of his injuries.

Appellant has directed a number of assignments of error to the trial court’s rulings admitting or excluding evidence and to the court’s charge to the jury. We have examined all of these carefully, and we find no prejudicial error which would justify sending this case back for a third trial. “New trials are not granted for error and no more. The burden is on the appellant not only to show error but also to show that he was prejudiced to the extent that the verdict of the jury was thereby probably influenced against him.” Freeman v. Preddy, 237 N.C. 734, 76 S.E. 2d 159. This the appellant has not shown. Accordingly, we find

No error.

Judges Britt and Morris concur.