Bowen v. Jones

Court of Appeals of North Carolina

Bowen v. Jones

203 S.E.2d 669, 21 N.C. App. 224, 1974 N.C. App. LEXIS 1765

CourtCourt of Appeals of North Carolina

DecidedApril 3, 1974

DocketNo. 7328SC554

StatusPublished

This text of 203 S.E.2d 669 (Bowen v. Jones) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bowen v. Jones, 203 S.E.2d 669, 21 N.C. App. 224, 1974 N.C. App. LEXIS 1765 (N.C. Ct. App. 1974).

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Opinion

VAUGHN, Judge.

Although defendant argues that his motions for directed verdict and judgment notwithstanding the verdict should have been allowed, we are of the opinion that the evidence made out a case for consideration by the jury.

There must be a new trial, however, for errors committed when the court did not allow certain testimony from defendant. [225]*225Plaintiff introduced testimony from several witnesses to the effect that defendant did not have the odor of alcohol about him immediately after the accident. Plaintiff also elicited testimony tending to show that there was no odor of alcohol about plaintiff’s intestate immediately after the accident. Defendant thereafter attempted to testify, in effect, that he and plaintiff’s intestate had been together for several hours and that both of them had been drinking. That testimony was excluded by the court. Plaintiff, having offered evidence on the material question of the sobriety of the parties, waived such right as he might have had under G.S. 8-51 to object to rebuttal testimony on the same question from defendant. Pearce v. Barham, 267 N.C. 707, 149 S.E. 2d 22; Carswell v. Greene, 253 N.C. 266, 116 S.E. 2d 801; Bryant v. Ballance, 13 N.C. App. 181, 185 S.E. 2d 315, cert. den., 280 N.C. 495, 186 S.E. 2d 513.

New trial.

Judges Hedrick and Baley concur.

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VAUGHN, Judge.

Although defendant argues that his motions for directed verdict and judgment notwithstanding the verdict should have been allowed, we are of the opinion that the evidence made out a case for consideration by the jury.

There must be a new trial, however, for errors committed when the court did not allow certain testimony from defendant. [225]*225Plaintiff introduced testimony from several witnesses to the effect that defendant did not have the odor of alcohol about him immediately after the accident. Plaintiff also elicited testimony tending to show that there was no odor of alcohol about plaintiff’s intestate immediately after the accident. Defendant thereafter attempted to testify, in effect, that he and plaintiff’s intestate had been together for several hours and that both of them had been drinking. That testimony was excluded by the court. Plaintiff, having offered evidence on the material question of the sobriety of the parties, waived such right as he might have had under G.S. 8-51 to object to rebuttal testimony on the same question from defendant. Pearce v. Barham, 267 N.C. 707, 149 S.E. 2d 22; Carswell v. Greene, 253 N.C. 266, 116 S.E. 2d 801; Bryant v. Ballance, 13 N.C. App. 181, 185 S.E. 2d 315, cert. den., 280 N.C. 495, 186 S.E. 2d 513.

New trial.

Judges Hedrick and Baley concur.

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Bluebook (online)

203 S.E.2d 669, 21 N.C. App. 224, 1974 N.C. App. LEXIS 1765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowen-v-jones-ncctapp-1974.

Opinion

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