Williams v. Cody

72 S.E.2d 867, 236 N.C. 425, 1952 N.C. LEXIS 568

• Court: Supreme Court of North Carolina
• Decided: November 5, 1952
• Status: Published

Opinion

Devin, C. J.

The plaintiff appellant assigns error in the ruling of the trial court with respect to the admission of evidence, to which timely exceptions were noted. We have examined each of these exceptions and find them without substantial merit.

The plaintiff also noted exception to the following charge to the jury: “If you find as a fact from the evidence and by its greater weight that the plaintiff opened his car door and attempted to alight from his car on the street side instead of the sidewalk side of his car without observing the proper lookout, then it would be your duty to answer the second issue Yes.”

While this instruction is open to criticism for omission of reference to proximate cause (McIntyre v. Elevator Co., 230 N.C. 539, 54 S.E. 2d 45), we note it was addressed to the issue of plaintiff’s contributory negligence, the second issue in plaintiff’s action. As the jury answered the issue as to defendant’s negligence, the first issue in that case, in favor of the defendant, the question of plaintiff’s contributory negligence was no longer material.

Plaintiff noted exceptions to other portions of the judge’s charge and to his failure to charge sufficiently in other respects, but an examination of these exceptions in connection with the entire charge and the setting of the case, leads us to the conclusion that no prejudicial error has been made to appear.

Tbe conflicting recollections of tbe plaintiff and defendant as to wbat occurred on this occasion on a busy street in Ealeigb seems to have been fairly submitted to tbe jury for tbeir decision, and we find no sufficient reason to disturb tbe result.

No error.