Wilson v. Young

188 S.E.2d 671, 14 N.C. App. 631, 1972 N.C. App. LEXIS 2200

Opinion

VAUGHN, Judge.

Plaintiff assigns as error the admission of testimony by the defendant as to the speed of plaintiff’s vehicle. Whether or not this type of evidence is admissible depends, to a large degree, on the witness’ opportunity for observation and what advantage he takes of that opportunity. The evidence as to plaintiff’s speed went only to the issue of contributory negligence. “The verdict on the first issue, i.e., that the male defendant was not guilty of any actionable negligence, necessarily required that judgment be entered against the plaintiff, and rendered the issue of contributory negligence and the instructions thereon immaterial.” Call v. Stroud, 232 N.C. 478, 61 S.E. 2d 342; see also, Key v. Woodlief, 258 N.C. 291, 128 S.E. 2d 567; Peel v. Calais, 224 N.C. 421, 31 S.E. 2d 440. Assuming, without deciding, that the testimony as to plaintiff’s speed would have been inadmissible over proper objection, its admission in the present case did not constitute prejudicial error.

Plaintiff further assigns as error the trial court’s denial of his motion to set aside the verdict as being contrary to the greater weight of the evidence. “A motion to set aside the verdict as being contrary to the greater weight of the evidence is addressed to the discretion of the trial court, and its ruling thereon will not be reviewed in the absence of showing of abuse.” Chalmers v. Womack, 269 N.C. 433, 152 S.E. 2d 505; see also, Martin v. Underhill, 265 N.C. 669, 144 S.E. 2d 872; Roberts v. Mills, Inc., 8 N.C. App. 612, 175 S.E. 2d 289. No abuse of discretion appears in this case. In the trial from which plaintiff appealed, we find no prejudicial error.

No error.

Judges Brock and Hedeick concur.