Smith v. Safety Coach Line, Inc.

132 S.E. 567, 191 N.C. 589, 1926 N.C. LEXIS 128

• Court: Supreme Court of North Carolina
• Decided: April 14, 1926
• Status: Published

Opinion

Brogden, J.

The controlling question presented by the record is whether or not there was sufficient evidence to take the case to the jury. The defendant contends that there is not such evidence by reason of the fact that the plaintiff testified that the name of the bus that struck him was “The Sheik,” which was not owned by the defendant, and that thereafter during the trial the plaintiff testified that the name of the bus which caused the injury, was “Miss Burlington,” said bus being owned by the defendant. Irrespective of the name of the bus, the witness Oates testified, without objection, that after the collision he had ridden in the same bus that caused the injury, and that he knew of his own knowledge that said bus was operated by the defendant. So that, the defendant’s contention as to the insufficiency of the evidence rests upon the sole proposition that conflicting evidence ought not to be considered by a jury in the trial of causes. 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 the case from the jury. It affects only the credibility of the witness, and therefore, where inconsistent and conflicting statements are made by a witness or a party, the judge has no power to determine which is correct. This function belongs exclusively to the jury. To the same effect is Christman v. Hilliard, 167 N. C., p. 5, where plaintiff testified on direct examination that he could not state whether the land in controversy was embraced in the deed or not. Thereafter on cross-examination he testified that the land was embraced in the deed. The trial judge thereupon nonsuited the plaintiff and under the principles of law heretofore established by the Court, the nonsuit was held to be error. Ward v. Mfg. Co., 123 N. C., 248; Barnett v. Smith, 171 N. C., 535; Evans v. Lumber Co., 174 N. C., 31; Bank v. Brockett, 174 N. C., 41; Newby v. Realty Co., 182 N. C., 34; Shaw v. Handle Co., 188 N. C., 236; In re Fuller, 189 N. C., 512; Lee v. Brotherhood, ante, 359.

The charge of the able trial judge covered every phase of the testimony and correctly applied the rules of law pertinent thereto, and the judgment as written must stand.

No error.