Williamson v. Williamson

95 S.E.2d 574, 245 N.C. 228, 1956 N.C. LEXIS 564

Opinion

DeviN, J.

On the second issue the court charged the jury as follows: “Now, if you find by the greater weight of the evidence that the defendant carried the plaintiff to her granddaughter’s and did not return or send for her, you will answer the issue No. 2 Yes.”

To this instruction the defendant duly noted exception and now assigns same as prejudicial error. We think the exception was well taken.

Examining the entire charge of the court in this case, we do not find any other instruction in which opportunity for an alternative finding was afforded the jury. There was no hypothesis upon which they were instructed they could answer the issue “no.” The court stated the contentions of the parties on the evidence offered, but in the instruction on the 2nd issue only the ground for an affirmative answer was stated. The burden of proof on the issue was on the plaintiff, and the defendant’s evidence tended to throw a different light on the question at issue. We think the defendant was entitled to have her evidence submitted to the jury in such a way as to afford opportunity for a negative response to the issue if the jury so found. The charge coupled the second issue only with the plaintiff’s evidence for the purpose of decision.

We think the defendant entitled to a new trial, and it is so ordered.

New trial.

JOHNSON, J., not sitting.