Jernigan v. Atlantic Coast Line Railroad

175 S.E.2d 701, 9 N.C. App. 186, 1970 N.C. App. LEXIS 1308

• Court: Court of Appeals of North Carolina
• Decided: August 5, 1970
• Docket: No. 706SC431
• Status: Published

Opinions

Brock, J.

Dependant’s Appeal

Defendant assigns as error the exclusion of the testimony of the witness Charles Carr relating to how far away the witness could see defendant’s tracks at night. The witness’ testimony was very indefinite and clearly amounted to no more than a guess; he clearly stated he did not know whether he saw the tracks or not. We think the testimony was properly excluded.

Defendant assigns as error that the trial judge allowed plaintiff to testify concerning his present salary. This testimony was offered on the issue of damages for personal injury and appears to be insufficient to show decrease in earning power. If plaintiff feels that he has suffered a decrease in his earning-power by reason of the injuries complained of, he should be prepared to give more detailed testimony as to his physical condition and what he was able to earn before; and in what way- and to what extent the injuries have decreased his ability to-earn since the accident. However, since this assignment of error-relates to the issue upon which Judge Cohoon ordered a new trial, if there was error in admitting the fragmentary evidence-it has been cured.

Defendant assigns as error certain portions of the judge’s, charge to the jury. After a careful reading of the charge as a. whole, it appears to us that the charge was fair to the defendant, in all respects, and that the case was submitted to the jury upon, appropriate principles of law.

Defendant assigns as error the failure of the Court to direct, a verdict in defendant’s favor and the Court’s failure to enter-judgment in defendant’s favor notwithstanding the verdict. It seems clear that these same issues were resolved against defendant in the earlier appeal of this case (Jernigan v. R. R. Co., 275 N.C. 277, 167 S.E. 2d 269).

Plaintiff’s Appeal

Plaintiff assigns as error the setting aside of the verdict on the issue of damages for personal injury.

The action of the trial judge in setting aside a verdict in his discretion is not subject to review on appeal in the absence of an abuse of discretion. Goldston v. Chambers, 272 N. C. 53, 157 S.E. 2d 676. And the trial court has the discretionary power to set aside the verdict on the issue of damages and order a new trial confined to that issue alone. Branch v. Gurley, 267 N.C. 44, 147 S.E. 2d 587. The record in this case discloses no abuse of discretion on the part of the trial judge.

On defendant’s appeal, no error.

On plaintiff’s appeal, no error.

Morris, J., concurs. Graham, J., concurs in separate opinion.