Bailey Ex Rel. Bailey v. McKay

152 S.E. 893, 198 N.C. 638, 1930 N.C. LEXIS 435

• Court: Supreme Court of North Carolina
• Decided: April 30, 1930
• Status: Published

Opinion

Stacy, C. J.,

after stating the case: The testimony of S. C. Lewellyn, the only evidence upon which the plaintiff relies for a reversal of the judgment of nonsuit, falls short of the desired purpose on appeal, because of its indefiniteness and uncertainty. The distance of' the car from the scene of the accident, when the witness saw it and observed its speed, is not stated, nor is it determinable from the record. The plain tiff says, however, that tbe testimony of this witness, with its reasonable inferences and intendments, is sufficient to carry tbe ease to tbe jury under tbe principle announced in Ledbetter v. English, 166 N. C., 125, 81 S. E., 1066, and many other cases, while tbe defendants contend otherwise. We are unable to perceive from tbe record any error in tbe judgment.

Tbe burden is on appellant to show error; it is not presumed. Forester v. Vyne, 196 N. C., 477, 146 S. E., 146; Jones v. Candler, 196 N. C., 382, 145 S. E., 691; In re Ross, 182 N. C., 477, 109 S. E., 365.

Affirmed.