Burnette v. Perdue

225 S.E.2d 605, 29 N.C. App. 689, 1976 N.C. App. LEXIS 2628

Opinion

MORRIS, Judge.

Plaintiff appellant first contends that the trial court erred in setting aside the jury’s verdict and in entering judgment notwithstanding the verdict. We agree.

Here, the plaintiff testified that he proceeded when the light turned green and that he in fact glanced briefly in the general direction of defendant’s approaching car, but claimed he was unable to see the defendant until immediately prior to the impact. Under these circumstances, the evidence does not indicate, as a matter of law, that plaintiff’s negligence, if any, was a proximate cause of this accident and the trial court erred in upsetting the jury’s verdict.

Plaintiff also argues that the trial court erred in granting, in the alternative, defendant’s motion for a new trial. We disagree. The decision to grant a new trial lies within the discretion of the trial court and we find nothing in this record indicating abuse of this discretion. See: Coppley v. Carter, 10 N.C. App. , 179 S.E. 2d 118 (1971). Suffice it to say, that the trial court’s decision to grant defendant a new trial was warranted and proper in view of all the circumstances of this case.

The judgment of the trial court is reversed in part and affirmed in part, and plaintiff is entitled to a

New trial.

Judges Parker and Martin concur.