Gunn v. Blue Bird Taxi Co.

193 S.E. 747, 212 N.C. 540, 1937 N.C. LEXIS 364

Opinion

Per Curiam.

In view of the equivocal and somewhat confusing, if not self-contradictory, testimony of L. S. Gunn, the jury might well have answered tbe issue of contributory negligence against bim in bis action, nevertheless there is some evidence to support tbe verdict, and tbe matter was for tbe twelve. Hancock v. Wilson, 211 N. C., 129, 189 S. E., 631; Jackson v. Scheiber, 209 N. C., 441, 184 S. E., 17; Dozier v. Wood, 208 N. C., 414, 181 S. E., 336; Lincoln v. R. R., 207 N. C., 787, 178 S. E., 601; Insurance Co. v. Edgerton, 206 N. C., 402, 174 S. E., 96; Collett v. R. R., 198 N. C., 760, 153 S. E., 405; Wimberly v. R. R., 190 N. C., 444, 130 S. E., 116.

Speaking to tbe point in Shell v. Roseman, 155 N. C., 90, 71 S. E., 86, Allen, J., said: “We are not inadvertent to tbe fact that tbe plaintiff made a statement on cross-examination as to a material matter, apparently in conflict with bis evidence when examined in chief, but this affected bis credibility only, and did not justify withdrawing bis evidence from tbe jury. Ward v. Mfg. Co., 123 N. C., 252.”

In similar fashion, in Christman v. Hilliard, 167 N. C., 4, 82 S. E., 949, Walker, J., reversing a nonsuit, remarked: “. . . tbe witness E. D. Christman bad tbe right to change bis mind, and it was for tbe jury to say which of tbe two statements made by bim they would accept.”

Again, in Smith v. Coach Line, 191 N. C., 589, 132 S.. E., 567, Brogden, J., speaking for tbe Court, said: “In Shell v. Roseman, 155 N. C., 90, this Court has held that conflicting statements of a witness in regard to or concerning a material or vital fact does not warrant a withdrawal of tbe case from tbe jury. It affects only tbe credibility of tbe witness, and therefore, where inconsistent and conflicting statements are made by a witness or a party, tbe judge has no power to determine which is correct. This function belongs exclusively to tbe jury.”

Tbe case of tbe feme plaintiff presents little more than a controverted issue of fact, which tbe jury has determined in her favor. A careful perusal of tbe record leaves us with tbe impression that no substantial or reversible error has been made to appear. Hence, tbe verdicts and judgments will be upheld.

No error.