Grant v. Bartlett

Devik, J. Defendant assigns error in tbe denial of bis motion for judgment of nonsuit. He presents tbe view that tbe evidence was insufficient to show negligence on bis part, or, if so, that tbe contributory negligence of plaintiff as a proximate cause of tbe injury was made out by tbe plaintiff’s evidence. However, considering tbe evidence in tbe light most favorable for tbe plaintiff on tbis motion, we think tbe case was properly submitted to tbe jury. Fitzgerald v. R. R., 141 N.C. 530, 54 S.E. 391; Cashwell v. Bottling Works, 174 N.C. 324, 93 S.E. 901; Wyrick v. Ballard Co., Inc., 224 N.C. 301, 29 S.E. 2d 900. Defendant noted exceptions to tbe judge’s charge to tbe jury, and .assigns error for that tbe court failed therein to give instructions to tbe jury as to certain subordinate matters of evidence, but, as there was no request for instruction, these exceptions cannot be sustained. School District v. Alamance County, 211 N.C. 213 (226), 189 S.E. 873. Defendant also assigns error in tbe failure of tbe court to review the ■evidence of witnesses as to statements previously made by plaintiff which •defendant contended served to contradict plaintiff’s evidence on tbe .stand. It appears from tbe record that tbe court substantially complied with plaintiff’s oral request in tbis respect and no prejudicial effect is perceived. In tbis connection it may be noted that by Chap. 107, Session Laws 1949, tbe language of G\S. 1-180 was amended by striking out tbe previous requirement that tbe judge in giving a charge to a petit jury '“shall state in a plain and correct manner tbe evidence given in tbe case and declare and explain tbe law arising on tbe evidence,” and providing merely that “be shall declare and explain tbe law arising on tbe evidence given in tbe case. He shall not be required to state such evidence except to tbe extent necessary to explain tbe application of tbe law thereto; provided tbe judge shall give equal stress to tbe contentions of plaintiff •■and defendant in civil action.” Tbe trial seems to have been free from substantial error, and tbe result will not be disturbed. No error.