Leary v. Norfolk Southern Bus Corp.

21 S.E.2d 831, 222 N.C. 38, 1942 N.C. LEXIS 14

Opinion

Denny, J.

The pertinent exceptions and assignments of error are to the overruling of defendant’s motion for judgment as of nonsuit made at the conclusion of all the evidence and to the refusal of his Honor to give defendant’s prayers for instruction to the jury. These prayers were to the effect that if the jury should find the facts to be as testified to by all the witnesses, the jury should answer the issues of negligence in favor of defendant and the issue of contributory negligence in the case of McDuffie against said plaintiff.

The defendant offered no evidence at the trial below.

The actions in both trials were tried upon the same pleadings except for an amendment to the answer in the Leary case. The issues submitted and answered by the respective juries were substantially the same. Unless the evidence varies in important particulars from that offered by the plaintiffs at the former trial, the motion for judgment as of nonsuit cannot be sustained on this record. Fisher v. Fisher, 218 N. C., 42, 9 S. E. (2d), 493; Johnson v. Ins. Co., 219 N. C., 202, 13 S. E. (2d), 241; Wall v. Asheville, 220 N. C., 38, 16 S. E. (2d), 397; Pinnix v. Griffin, 221 N. C., 348, 20 S. E. (2d), 366.

An examination of the two records discloses the evidence offered at both trials by the plaintiffs was substantially the' same. Therefore defendant’s exception to the refusal of its motion for judgment as of nonsuit, and the exceptions to the refusal of his Honor to give instructions for a directed verdict on the issues of negligence and contributory negligence, cannot be sustained. The issues were properly submitted to the jury. Clarke v. Martin, 215 N. C., 405, 2 S. E. (2d), 10; Page v. McLamb, 215 N. C., 789, 3 S. E. (2d), 275; Holland v. Strader, 216 N. C., 436, 5 S. E. (2d), 311; Christopher v. Fair Asso., 216 N. C., 795, 4 S. E. (2d), 513; Bechtler v. Bracken, 218 N. C., 515, 11 S. E. (2d), 721.

Tbe remaining assignments of error are formal and without substantial merit. In tbe judgment of tbe court below, we find

No error.