Combs v. . Cooper

*204 Stacy, C. J., after stating the case: In directing a verdict for the defendant, the learned trial judge evidently overlooked the testimony of the plaintiff. Where the evidence is equivocal or conflicting, as in the present case, and fairly susceptible to more than one inference, the matter should be left to the jury, under a proper charge, without peremptory instructions from the court. Moore v. Ins. Co., 193 N. C., 538; Brooks v. Milling Co., 182 N. C., 258. Such was the holding in Dv'erett v. Receivers, 121 N. C., 519 (as stated in the first head-note) : “Where, in the trial of an action, the plaintiff has produced some evidence, or more than a scintilla, in support of his contention, or there is conflicting evidence, it is the province of the jury to determine its weight, and it would be improper to instruct the jury that if they believe the evidence the plaintiff cannot recover.” We cannot say from the record that the error in the present instruction was harmless. New trial.