McKeller v. . Martin

187 S.E. 555, 210 N.C. 830, 1936 N.C. LEXIS 248

Opinion

Per Curiam.

The appellant assigns as error the following excerpt from his Honor’s charge: “If you answer the (first) issue ‘Yes,’ you will proceed to the consideration of the second issue as to the damages sustained, if any, but if you fail to find by the greater weight of the evidence that the defendant was guilty of negligence, and that such negligence was the proximate cause of the plaintiff’s injury, then you will answer the first issue ‘Yes’; otherwise, you will answer it ‘No.’” The error is obvious. His Honor used the word “Yes” where he should have used tbe word “No,” and “No” where be should have used “Yes.” This error, evidently due to inadvertence, was one of the unavoidable casualties of the circuit, but, being material, it entitles the defendants to a new trial.

Error.