Gold v. . Kiker

Stacy, C. J. (after stating the facts as above) : Two serious questions are posed by the record: First. Was it error to refuse the defendant’s motion for a mistrial? The answer to this question is not altogether free from difficulty, albeit the reasons assigned by the defendant for its request were perhaps untenable. Was not the real reason for ordering a dismissal of the action as against Kiker & Yount the probable harm that might otherwise come to Ames & Webb, Inc.? And if it were hurtful for them to remain in the case, notwithstanding their agreement to do so, had not the harm already been done? S. v. Rogers, 173 N. C., 755, 91 S. E., 854, L. R. A., 1917 E, 1857. It may be conceded the record is such as to leave the matter in doubt. This alone would seem to defeat the assignment of error on appeal, as the party alleging error has the laboring oar and must overcome the presumption against him. Cole v. R. R., 211 N. C., 591, 191 S. E., 353. But in addition, it appears that the defendant elected to place the circumstances before the jury and was allowed to take credit for the amount Kiker & Yount had agreed to pay the plaintiffs. The jury was instructed to disregard the “compromise” agreement in determining the liability of Ames & Webb, Inc., and to consider it only for purposes of credit in case they came to the award of damages. Did not this cure any previous objection or render it harmless? Hyatt v. McCoy, 194 N. C., 760, 140 S. E., 807. The record also reveals that the motion was addressed primarily to the court’s discretion, and for reasons regarded by the court as inconclusive. Discretionary rulings of the trial court are not ordinarily considered on appeal, unless accompanied by some imputed error of law or legal inference. Cole v. R. R., supra; S. v. Lea, 203 N. C., 316, 166 S. E., 292. *208 Tbe trial court was confronted with, an unusual situation. We cannot say there was error in the way it was handled or that prejudice necessarily resulted therefrom. The “compromise” was not with the defendant and the plaintiff but with the plaintiff and a third party. The defendant’s liability alone was at issue upon the trial. How could the defendant complain even if Kiker & Yount had admitted their liability on the hearing? This would not have established any liability against Ames & Webb, Inc. The defendants were dealing with each other “at arm’s length.” The suggestion that some disadvantage may have come to the defendant from what took place is wanting in sufficiency to work a new trial. McNinch v. Trust Co., 183 N. C., 33, 110 S. E., 113. Verdicts and judgments are not to be disturbed except upon a showing of prejudicial error, i.e., error which amounts to the denial of some substantial right. Combs v. Paul, 200 N. C., 382, 157 S. E., 12; Wilson v. Lumber Co., 186 N. C., 56, 118 S. E., 797; In re Ross, 182 N. C., 477, 109 S. E., 365; Brewer v. Ring, 177 N. C., 476, 99 S. E., 358. Moreover, supposing a new trial were granted and the same situation should arise again, what would the trial court do about it? Lane v. Paschall, 199 N. C., 364, 154 S. E., 626. It is not contended that the actions should be dismissed ex mero motu. The court was only asked to declare a mistrial. The conclusion is reached that the exception must be overruled. See Goodman v. Goodman, 201 N. C., 808, 161 S. E., 686, and cases there cited. Second. Was it error to overrule the defendant’s motion for judgment of nonsuit in the Walker case on the ground of plaintiff’s contributory negligence? This must be answered in the negative. It is true, the plaintiff’s testimony-in-chief was weakened somewhat by his cross-examination, but on the whole it would seem the issue was one for the twelve. The ruling is supported by what was said on the former appeal in the Gold case, and the following cases are also in point: Ferguson v. Asheville, 213 N. C., 569, 197 S. E., 146; Lincoln v. R. R., 207 N. C., 787, 178 S. E., 601. It is readily conceded that the plaintiff’s negligence, in order to bar a recovery in an action like the present, need not be the sole proximate cause of the injury, for this would exclude any idea of negligence on the part of defendant. Absher v. Raleigh, 211 N. C., 567, 190 S. E., 897. It is enough if it contribute to the injury. Wright v. Grocery Co., 210 N. C., 462, 187 S. E., 564; Construction Co. v. R. R., 184 N. C., 179, 113 S. E., 672. The very term “contributory negligence” ex vi termini implies or presupposes negligence on the part of the defendant. Fulcher v. Lumber Co., 191 N. C., 408, 132 S. E., 9. The testimony of Walker, if not wholly consistent, is sufficiently equivocal on the issue of his contributory negligence to require its submission to the jury. Moseley v. R. R., 197 N. C., 628, 150 S. E., 184. *209 Speaking to tbe duty of both defendants on the former appeal in the Gold case, it was said: “The contractual obligations assumed by each of the defendants as reflected in the provisions quoted in the above statement of the case provide evidence of legal duty which the defendants, and each of them, owed to plaintiff’s intestate, and others traveling the highway, to exercise ordinary care in providing and maintaining reasonable warnings of and safeguards against conditions existent at the time and place in question — a duty which originated upon the award of the contract and continued until the final acceptance of the work by the State Highway and Public Works Commission.” The plaintiffs were taxed with one-half the costs which accrued prior to the dismissal of the actions as against Kiker & Yount, and from this they appeal. In the light of the record it would seem that the ruling is authorized by C. S., 1242. It results, therefore, that the judgments should be upheld. This will be done. No error. ClabKSON and ScheNCK, JJ., dissent on first question only. Seawell, J., dissents.